Nos. 16,352, 16,353—(165, 166) | Minn. | Jan 14, 1910
Action upon the joint promissory note of defendants Babcock and Bowen. Defendant Bowen alone answered, setting up the defense, among other things, that he signed the note -as an accommodation maker at the instance and request of the payee therein, plaintiff in this action, without consideration, to enable plaintiff to make use of the same as a bankable asset, and for no other purpose whatever. A verdict was returned for defendant on the trial below sustaining this defense. Whereupon plaintiff moved for judgment notwithstanding the verdict or for a new trial. The trial court denied the motion for judgment, but granted a new trial. Both parties appealed. Defendant’s appeal will be first disposed of.
• 1. Plaintiff’s motion for a new trial was based upon the grounds {1) of errors in law occurring at the trial and duly excepted to, (2) that the verdict was not justified by the evidence, and (3) misconduct of defendant’s counsel in his argument before the jury. The court below assigned no reason for granting the new trial, •either in the order or a memorandum, and, though the verdict seems clearly against the weight of the evidence, we cannot assume that the court granted the new trial upon that ground. Fitger v. Guthrie, 89 Minn. 330" court="Minn." date_filed="1903-05-22" href="https://app.midpage.ai/document/fitger-v-guthrie-7972581?utm_source=webapp" opinion_id="7972581">89 Minn. 330, 94 N. W. 888; Berg v. Olson, 88 Minn. 392" court="Minn." date_filed="1903-01-30" href="https://app.midpage.ai/document/berg-v-olson-7972478?utm_source=webapp" opinion_id="7972478">88 Minn. 392, 93 N. W. 309.
We must therefore look to the other grounds of the motion to ascertain whether the record will sustain the order for the reasons therein assigned. We discover no reversible errors in law, and the only remaining ground of the motion is misconduct, of counsel. As no errors in law are urged in support of the order, and as none appear from the record, wé must assume that the trial court granted the motion upon this ground of misconduct, and we dispose of defendant’s appeal accordingly. ' Upon this question it is thoroughly
2. The principal contention of plaintiff on its appeal is that as practically all the testimony offered by defendant to establish the defense that the note was given as an accommodation to the bank was inadmissible, because its effect was to vary and contradict by parol the terms of the note, and also the terms of the contract between Bowen and Babcock, by which Babcock turned over to Bowen certain security to indemnify him from loss possibly to follow, the court should have ignored it and granted plaintiff’s motion for an instructed verdict.
We do not concur in this view of the case. We, of course, are not to’ be understood as questioning the elementary proposition that written contracts cannot be varied or contradicted by parol evidence; but that rule has no application to a question of the character of that here presented, viz., whether a promissory note was made and delivered to the payee as an accommodation to him, and not as a valid, binding obligation. The defense that a promissory note was made as an accommodation to- the payee is inseparably connected with the absence or want of a consideration. If there was a valuable consideration moving between the maker and the payee, the claim of accommodation could have no possible foundation to rest upon. So that testimony to the effect that it was given as an accommodation does not, strictly speaking, contradict the terms, of the note, within the rule excluding parol evidence on that subject, but only establishes the fact, always admissible between the parties, that the note was without consideration. And, though there may be some conflict upon the question in the adjudicated cases, the prevailing rule admits evidence for this purpose. 1 Ene. L. & P. 494,
3. The agreement, if any was made, that defendant should sign the note as an accommodation, to enable the bank to exhibit it to the bank examiner as an asset, was made with plaintiff’s manager, •one Hoerr, who was in general charge and control of the bank. It is insisted that Hoerr had no authority to enter into such an agreement, and, even if made, it is not binding upon the bank. This position is not sound. Hoerr was the agent of plaintiff, and in general charge of its affairs. Second Nat. Bank v. Howe, supra. The matter was within the scope of his agency, the agreement did not impose an obligation upon his principal at variance with its banking interests, and his act, even if unauthorized, cannot be repudiated in part. Albitz v. Minneapolis & Pac. Ry. Co., 40 Minn. 476" court="Minn." date_filed="1889-05-20" href="https://app.midpage.ai/document/albitz-v-minneapolis--pacific-railway-co-7966027?utm_source=webapp" opinion_id="7966027">40 Minn. 476, 42 N. W. 394; German Nat. Bank v. First Nat. Bank, 59 Neb. 7" court="Neb." date_filed="1899-09-21" href="https://app.midpage.ai/document/german-national-bank-v-first-national-bank-6653035?utm_source=webapp" opinion_id="6653035">59 Neb. 7, 80 N. W. 48; Aultman Co. v. McDonough, 110 Wis. 263" court="Wis." date_filed="1901-04-30" href="https://app.midpage.ai/document/aultman-co-v-mcdonough-8186957?utm_source=webapp" opinion_id="8186957">110 Wis. 263, 85 N. W. 980; 2 Enc. L. & P. 862, and cases cited. Nor is it important that the purpose of securing the signature of defendant was not to enable the bank to obtain credit upon the note. If the object was to enable the bank to use the note for any purpose, it was as much an accommodation note as though made to enable it to obtain pecuniary credit thereon; the execution thereof being for the special purpose, and without consideration to defendant.
4. It is also urged that, as the trial court instructed the jury that if there was any consideration for the note running to either of the defendants, plaintiff wás entitled to a verdict, and judgment notwithstanding the verdict should now be entered, for the reason that it is undisputed that a valuable consideration was paid to Babcock.
We do not construe the instructions of the court in the light contended for by plaintiff. Taken as a whole, the court intended the
5. Upon the general question whether on the evidence presented plaintiff should have had a directed verdict, little need be said. Though we are impressed from the record that the defense that the note was signed by Bowen as an accommodation to the bank is an afterthought, and that in truth he occupied the position of surety, yet under the rule of Cruikshank v. St. Paul F. & M. Ins. Co., 75 Minn. 266, 77 N. W. 958, we are not warranted in directing judgment notwithstanding the verdict, and we remand the question for further consideration by the court below.
Order affirmed on both appeals.