151 N.W. 289 | N.D. | 1915
The complaint seeks a recovery on a promissory note signed by defendant and one Jacobson as makers, the action being against defendant, Rosenquist, alone. The answer alleged that defendant signed the note as surety for one Jacobson, and that plaintiff procured his signature thereto under its agreement to assign to defendant a note it held against Jacobson, secured by his chattel mortgage upon eight horses and some crop; in other words, that the plaintiff assigned its chattel security to defendant in consideration of defendant’s becoming surety on Jacobson’s note to it. Defendant charges that it was represented to him as an inducement for his becoming such surety, that the security on the chattel mortgage was sufficient to protect him, as the horses were of the values stated in said mortgage, and that said mortgage was a first mortgage on the crop and most of said horses; whereas in truth and fact, as plaintiff and its agent then handling the transaction well knew, all of said property was covered by a first
To quote from the appellant’s brief, “all the errors assigned in this brief relate to exceptions taken to the judge’s charge to the jury and to the failure of the court to instruct the jury upon the theory of the case raised by the pleadings, and supported by the evidence introduced
Tbe other exception taken, that tbe court failed to instruct as to tbe liability of tbe surety, is indefinite when tbe charge is considered, and appellant’s brief does not make plain bis contention. But it is not well taken in any event. Tbe court charged tbe jury that “if you find that tbe representative of tbe plaintiff company represented to Bosenquist certain matters which be knew to be false, and that be made those representations in such a way and under such circumstances as to make a reasonable man to believe that what be stated was true, and tbe representation so made by him was acted upon, and tbe person to whom tbe representation was made, believing it to be true, acts upon tbe faith of it and suffers damage thereby, — if you find these matters to be true with reference to tbe transaction between Hauge representing tbe plaintiff and Bosenquist tbe defendant, that would vitiate and nullify this note; if you find that to be true by a preponderance of tbe evidence your verdict under those circumstances would be in favor of tbe defendant.” No request for further instructions was made, and tbe decision 'of tbe case was thus made to turn upon tbe issues outlined in tbe complaint; viz., whether defendant signed this note as surety because of tbe false representations in question. Preceding this instruction tbe court bad,
The court could have instructed much more strongly in defendant’s favor, and remained within the law, as to the liability of a surety. 2 Dan. Neg. Inst. § 1309; Bennett v. McMillin, 179 Pa. 146, 57 Am. St. Rep. 591, 36 Atl. 188; Fassnacht v. Emsing Gagen Co. 18 Ind. App. 80, 46 N. E. 45, 47 N. E. 48, 63 Am. St. Rep. 322, and extensive note citing scores of cases; Liland v. Tweto, 19 N. D. 551, 125 N. W. 1032. Under these authorities it was the duty of the plaintiff to abstain from fraudulent representation in procuring defendant’s signature as a surety, and fraud with reference thereto could be predicated by defendant upon any fraudulent concealment of material facts known to plaintiff, as well as any false statement by it of material facts to induce defendant to become surety. It was the duty of plaintiff to disclose fully every material fact touching the security in the mortgage as