130 P. 85 | Idaho | 1913
— The appellant instituted this action against the respondent to recover upon a check issued by the respondent dated December 23, 1910, upon the Boise City Na
The defendant admits in his amended answer that the check was executed and delivered and not paid, and also alleges as •a defense that, on December 23,1910, the husband of the plaintiff applied to T. A.' Bisby to procure a loan of $1,500 for the use and benefit of M. A. Swift and the plaintiff. That Charles H. Nelson, husband of plaintiff, falsely, fraudulently and deceitfully represented and stated to Bisby that Swift would secure the payment of the loan by the assignment and pledge of certain securities, and that Bisby stated and represented to defendant that Swift was the owner of such securities, and that such representations and statements induced the defendant to make the loan and execute the check sued upon, and that the defendant had no knowledge of the falsity of such representations; that at such time Swift was not the owner or in possession of the securities represented, and that the plaintiff' had full knowledge of the falsity of the facts regarding the loan at the time the cheek was executed; that the check was issued and given upon the express conditions and understanding that said securities were hypothecated and pledged as security.
The cause was tried before the court and findings of fact and conclusions of law were made in favor of the respondent.
The trial court found the facts in favor of the defendant, and the particular findings involved on this appeal are in substance : That on December 21, 1910, M. A. Swift was indebted to the plaintiff in the sum of $1,500 upon a promissory note given by Swift to the plaintiff, which was past due, and upon demand of payment Swift stated that she did not have the money, but that she had certain securities which she would deposit as collateral to secure her note given to anyone who would loan her sufficient money to pay the note due; that on December 23, 1910, Charles H. Nelson, the husband of plaintiff, applied to T. A. Bisby to procure a loan of $1,500 for the use and benefit of M. A. Swift and the plaintiff; that the
The court also found that Swift was not the owner of said property and that she did not present and deliver to the bank or to the defendant the securities mentioned in the agreement.
Other findings were made but the foregoing findings of fact are the particular findings of the court that are involved upon this appeal. Judgment was rendered accordingly. This appeal is from the judgment.
As conclusions of law the court found, first, that the plaintiff received the check with notice that the check was procured from the defendant by Mrs. Swift under false pretenses and with full knowledge of the manner and means employed to induce the said defendant to draw said check and deliver it to M. A. Swift and the plaintiff in this case; second, that the plaintiff is not entitled to recover, and that the defendant is entitled to judgment in his favor with costs of suit.
The first of these grounds would seem to be a conclusion of the facts upon the evidence, and not a conclusion of law, and is directly in conflict with finding No. 23, which finds that neither the plaintiff, the plaintiff’s agent nor the defendant in this case knowingly participated in any fraudulent dealing.
From a careful consideration of the evidence in this case, we are satisfied that there is none whatever which connects the plaintiff or her husband with any misrepresentation or statement which was made by them to the defendant, which was known to be false, and that the court was correct in finding that neither plaintiff, nor the plaintiff’s agent Nelson, knowingly participated in any fraudulent dealing, either in procuring the loan or in securing the check. The facts are plain and certain, and are in no way contradicted by the evidence: M. A. Swift was indebted to the plaintiff on December 21, 1910, in the sum of $1,500; she did not have the money to pay such indebtedness, and upon demand of payment informed Nelson, the husband of the plaintiff, that she had securities which she would deposit as collateral to secure her note given to anyone who would loan her sufficient money to pay the note due. Upon this statement being made to Nelson, Nelson and Swift went to Bisby, a loan agent, for such loan, and Bisby secured Hudgel, the respondent, as a person who would make the loan. Nelson and Swift met Hudgel, and Nelson
At or about the time the contract was made, Nelson stated to Hudgel that it would be a very great accommodation to him if he would give him a check at that time for the amount due on the note that Mrs. Swift owed the plaintiff, in order that Nelson might meet some obligations he owed to the state of Idaho on some lands, and in order that he might leave Boise and reach home at Christmas, and in consequence of such request Hudgel issued the check sued upon in this action. This accommodation that Nelson asked of Hudgel was
It is a well-recognized rule of law, which applies to the" facts of this case, that where parties are mutually cognizant of the facts acted upon, or stand upon the same footing with relation to them, and there exists no fiduciary relation between them, the law will not lend its aid to help the injured party for the simple reason that he has not himself used diligence and common sense, if the means of information is equally open to both parties, and there has been a mistake without fraud or falsehood, and there would probably be no remedy at law or in equity. (Smith on the Law of Frauds, p. 214.)
There is also another rule of law which especially applies to this case, that fraud is never presumed, but must be established by clear and convincing evidence, and that this is especially true where a party assails the integrity of a written instrument. (Pickle v. Lincoln County State Bank, 61 Wash. 545, 112 Pac. 654.)
Applying the foregoing rules of law to the facts in this ease, it is clear that both the plaintiff and the defendant had the same information and honestly acted upon the same statements and representations, to wit, the statements and representations of M. A. Swift, and that the respondent knew as much about the truth and reliability of the statements and representations as Nelson or the appellant, and that the respondent entered into a written contract with the party making the statements and representations, and it was upon that
The evidence in this case clearly shows that the appellant was the holder in due course of the check sued upon in this action, under the provisions of see. 3509, Rev. Codes. . The check was indorsed by the payee, M. A. Swift, and delivered to the appellant, in consideration of which the appellant surrendered to M. A. Swift the note the appellant held for the sum of $1,500, and after such transfer it was presented for payment. Under the provisions of the statute, sec. 3514, Rev. Codes, the plaintiff became the owner and holder of said check, free from defenses available to prior parties among themselves, and may enforce the payment of the instrument for the full amount thereof against all parties liable thereon. She certainly had no notice of any infirmity in the instrument or any defect therein. The judgment therefore is reversed, and a new trial granted. Costs awarded to appellant.