157 N.W. 305 | N.D. | 1916
The plaintiff was the owner of certain lands in Barnes county on which there was a first mortgage for $3,800 in favor of the First National Bank of Tower City, and a second mortgage for $3,000, in favor of the Merchant’s State Bank of Fingal, of which latter bank the defendant Paulson was president. In the fall of 1908, the plaintiff was desirous of making a new loan, and negotiations were had between plaintiff and defendant with reference thereto. Plaintiff claims that defendant agreed to procure a first loan for $6,000, the proceeds of which were to be applied in payment of the first mortgage with accrued interest, unpaid taxes, and certain other claims against the plaintiff, and that defendant would release the second mortgage of $3,000 (due in about three year’s) held by his bank, and place the same of record subsequent to the $6,000 first mortgage. The plaintiff further claims that defendant agreed to procure this loan at the rate of 6 per cent per annum, and that no commission was to be paid to the defendant for procuring such loan. The defendant, on the other hand, claims that it was agreed that the plaintiff should pay two years’ interest in advance upon the $3,000 second mortgage in consideration of the bank releasing such mortgage, and that it was further agreed that the first loan was to bear in all 8-J per cent interest, of which 2-J per cent was to be paid in advance as commissions for procuring the loan.
It is conceded that plaintiff and his wife executed and delivered the real estate mortgage and note for the $6,000 loan, and that defendant received the proceeds thereof from the mortgagee. It is also conceded that the defendant properly disbursed $4,415 thereof, of which amount $4,155.81 was disbursed in paying off the first mortgage for $3,000, with accrued interest thereon, and taxes outstanding against the land. The amount in dispute under the pleadings is $1,525, which plaintiff claims is the balance due him. Defendant claims to be entitled to this sum in payment of the two years’ interest on the $3.000 second mort
Plaintiff brings tbis action to recover from tbe defendant tbe balance alleged to be due upon sucb real estate loan, and in bis complaint alleges “that during tbe month of February, a. d. 1909, the above-named plaintiff made a loan in tbe sum of $6,000, for wbicb be gave bis promissory note, and as security for tbe payment of wbicb made, executed, and delivered a mortgage covering (certain-described lands in Barnes county) ; which said note and mortgage were executed and delivered by tbis plaintiff William Kurtz, to said defendant C. W. Paulson.
“That said C. W. Paulson, acting as tbe agent for tbe party making said loan to tbe said plaintiff, did then and there receive from bis said principal tbe sum of $6,000, as and for tbe proceeds of tbe loan, and did make application of tbe said proceeds in tbe payment of certain claims against and debts due and owing from tbe plaintiff herein, and did, from tbe said proceeds or tbe said sum of $6,000, pay unto creditors of tbis plaintiff tbe sum of $5,475, wbicb said sum is properly chargeable against tbe money due and owing from tbis plaintiff under said loan; to wit, said sum of $6,000.
“That there is due and owing to tbe plaintiff from said defendant by reason of tbe balance of tbe said loan not disbursed for and on behalf' of tbis plaintiff or under bis authorization, tbe sum of $525, no part of wbicb has been paid plaintiff by said defendant, and wbicb said sum was due and payable to tbe plaintiff on tbe 1st day of March a. d. 1909.”
Tbe defendant in bis answer admits that as agent for tbe plaintiff be secured a loan of $6,000 from one J. J. Naset of Wisconsin, and that at tbe direction of tbe plaintiff be paid out on plaintiff’s behalf certain sums of money, wbicb, together with defendant’s commission and expenses incident to making sucb loan, amounted to tbe full sum of $6,000, and that there is nothing due and owing to plaintiff from tbe defendant.
In bis original complaint plaintiff claimed only a balance of $525, but upon tbe trial of tbe action be applied for, and was granted leave to amend bis complaint by increasing tbe amount of tbe balance alleged to-be due to tbe plaintiff from $525 to $1,525. By stipulation between counsel, tbe original answer was permitted to stand as tbe answer to
As already stated, the questions in dispute were whether defendant was to procure the loan in question and temporarily release the second mortgage without any specific compensation for such service, or whether plaintiff agreed to pay defendant certain sums therefor.
It is undisputed that defendant’s bank held a second mortgage for $3,000 against the land in question, which second mortgage was subject to the first mortgage for $3,800. The only other claims which defendant or his bank held against the plaintiff were three certain notes, — one for $50, one for $150, and one for $430. The two first notes were paid out of the proceeds of the $6,000 loan. Plaintiff claims that the
We are of the opinion that the chattel mortgage should have been received in evidence. The theory of plaintiff, as indicated in his testimony, seems to have been that defendant was willing, and even anxious, to release the second mortgage for $3,000, and permit a mortgage of $6,000 to become a prior lien on the premises covered thereby, as well as make the loan without any charge therefor, in order to enable plaintiff to pay, out of the proceeds of the new loan, the three notes which he owed defendant’s bank. It was for the jury to determine what the agreement or understanding was. Reasonable men have some reason for their acts. Why would defendant permit a $6,000 first mortgage instead of a $3,800 first mortgage to become a lien prior to his second mortgage for $3,000 ? Why would defendant permit impairment of the security covered by the $3,000 mortgage, and perform all the services in procuring and negotiating the new $6,000 loan, .all without compensation ? These questions, as suggested by defendant’s counsel, must have presented themselves to the jury. If defendant’s bank held unsecured notes against the defendant aggregating $638.25, the payment of such claims might constitute the inducement which caused defendant to do so. If, on the other hand, such claims or the major portion thereof
The judgment must therefore be reversed, and the cause is remanded for further proceedings. It is so ordered.