8 S.D. 412 | S.D. | 1896
Plaintiff, in his complaint, alleges, among other things, that on or about the 23d day of December, 1891, he purchased from the defendant two promissory notes, of $200 each, executed by L. C. and H. O. Bangs, which were amply secured by a chattel mortgage filed in the office of the register of deeds bn the 9th day of October, 1890; that as consideration for said notes, and an agreement on the part of defendant to execute an assignment of said mortgage, and file the same in the office of the ¡registe? of deeds, plaintiff paid to defendant
The theory of the defense, under which testimony was offered tending to prove the transactions between respondent and appellant to be a payment of the amount due, in satisfaction of the notes, instead of a purchase thereof, being, upon clearly conflcting evidence, submitted to and rejected by the jury, its verdict upon that point, which is found, from a careful examination of the record, to be substantially supported, cannot be disturbed. While it is quite clear that the property included in the mortgage, and in the hands of the mortgagors at the time their notes were purchased, was amply sufficient to pay the amount secured thereby, and that said notes were rendered practically worthless by the discharge of the mortgage from record, and a-subsequent sale of the horses described therein, counsel for defendant say that respondent is not entitled to resind the contract, because he has neither acted promptly in the matter, nor offered to restore the notes to any one authorized to receive the same. The court was neither called upon to decide, as a matter of law, that the offer to re-sind was made too late, nor to submit the question to the jury; and there is no available exception to the court’s charge, wherein it is, in effect, held that the offer to resind was made with sufficient promptness. Although it appears from the recitals of the complaint that respondent, after discovering that the mortgage had been released, waited about nine months before offering to resind, and that no facts tending to excuse such delay are averred therein, counsel’s objection to the introduction of any evidence thereunder, because “the alleged offer was discovered by plaintiff upon the 9th hay of December, 1892,-
Counsel’s contention that the release' filed immediately upon the receipt of the money, and delivery of the notes to respondent, was insufficient to operate as a discharge of the mortgage, cannot be entertained with favor. The instrument is in the usual form, executed in the name of the mortgagee, a corporation, and signed and acknowledged by the manager thereof. As managing agent, his authority will be presumed, in the absence of anything to the contrary. Chapter 83 of the Laws of 1891 authorizes the mortgagee, his assignee or agent, to release from record, and satisfy, a chattel mortgage, whenever the debt to secure which the same was executed has been paid, and requires the same to be done within 30 days thereafter. Under the statute, authorities which relate to the dis± charge and satisfaction of instruments under seal have no application to a chattel' mortgage. It appears from the evidence that respondent was not advised of the release of the mortgage until the 9th day of September, 1892, when, upon inquiry, he learned the fact, and that a large portion of the property had been taken, since the discharge thereof, to West Superior, and sold by one of the mortgagors, rendering the notes under consideration, in the hands of respondent, of little or no value. It further appears that appellant afterwards, and at respondent’s request, refiled said mortgage, and a fruitless effort was made to find the property described therein, and to collect from the mortgagors the money due upon the notes described in the complaint; that on the 22nd day of June, 1893, respondent tendered said notes to J. S. Mason, who, it is conceded, was the authorized agent of appellant to accept service of process, under the statute, and from whom he demanded a return pf the
From all the facts a,nd circumstances in the caso, we are disposed to conclude that respondent’s inability to place appellant in the same condition that it occupied at the time the notes were purchased was due entirely to the act of the latter, in wrongfully releasing the mortgage, instead of assigning the same as agreed upon. The right to rescind is based upon the act of appellant in causing the mortgage to be released, and some time after the fact was discovered seems to have been necessarily spent in a correspondence with appellant, which resulted in a refiling of the mortgage. Afterward an unsuccessful effort was made to collect the money due on the notes from the makers thereof. Had- these notes been collectible, or -the mortgagees ready and willing to promptly pay the amount thereof,.no injury would have resulted from the release of the mortgage; and, in order to entitle respondent to rescind, he must ascertain, and be able to show at the trial, that by reason of the act complained of, and through the fault of appellant, the consideration had failed in whole or in part. Comp. Laws, Sec. 8589, Subd. 2. Under the circumstances, and upon the record as .presented, we cannot say, as a matter of law, that respondent did not proceed with reasonable diligence. Finding no reversible error in the record, further discussion is unnecessary. The judgment is affirmed.