165 N.W. 557 | N.D. | 1917
Nellie Procise appeals from a judgment for $1,816. It was recovered on a promissory note made by her and her husband to the Citizens State Bank of Begent, North Dakota. Her defense is that she signed the note without any consideration, and that she was induced to sign it by false and fraudulent representations made to her by the bank cashier. Pier husband, Charles Procise, was indebted to the bank, and to secure the same he made to it a mortgage on real property, and to release her interest in the same, Nellie Procise signed the mortgage without any covenant to pay the debt. The bank cashier requested her to sign the note with her husband; that she positively refused to do, but the cashier insisted and assured her that the mortgage would not be good without her signature on the note; that it was a mere form, and that she would never be liable on the note, and she signed it relying on such assurances.
The testimony of her husband is clear and positive and uneontradicted. He testifies: “We had just finished our dinner when Orth, the cashier, and Mr. Buling came to our house. Mr. Orth brought out his papers and I signed them. ‘Now, he says, your wife will have to sign the mortgage, Charlie.’ So I stepped into the kitchen and asked my wife to come and sign the mortgage. She came and signed it, and Mr. Orth handed her the note to sign. She said, ‘I don’t have to sign that, do I ?’ Mr. Orth said: ‘She has got to sign the note, Charlie, or the mortgage would be no good.’ She protested that it was not necessary, and she absolutely refused to sign the note. Mr. Orth told her that the mortgage would be no good unless she signed the note, and he said: ‘You need not be afraid. We just want you to sign the note merely to validate the mortgage, and you cannot be held for it, and we will never try to hold you for it. To give validity to the mortgage it is absolutely necessary for you to sign the note.’ ” Her testimony is to the same
In a recent well-considered case Mr. Justice Christianson collated many authorities and expressed the rule thus: One of the exceptions seems to be that agreements or representations made prior to a written contract under which the party was induced to sign the contract may be shown; in other words, where a parol contemporaneous agreement was the inducing and moving cause of the contract, or where the parol agreement forms a part of the consideration for a written contract, and where the written contract was executed upon the faith of the parol contract or representation, such evidence is admissible. Erickson v. Wiper, 33 N. D. 206, 157 N. W. 592.
To deny the admission of such evidence would be to allow one of the parties to enter into an agreement under false representations, and then to aid him to enforce it against his adversary notwithstanding the fraud practised upon him by holding out to him the fraudulent inducement. Erickson v. Wiper, 33 N. D. 210, 157 N. W. 592.
Section 5842: The consent of parties to a contract must be free and mutual.
Section 5844: An apparent consent is not real or free when it is obtained by duress, menace, fraud, undue influence, or mistake.
There are mistakes of fact and of law.
Section 5855: Mistakes of law are of two classes:
1. A mistake common to all parties.
2. A mistake or misapprehension of the law by one party of which the others are aware at the time of contracting but which they do not rectify.
In this case the good banker fraudulently led the defendant into a mistake of the law, and thereby obtained her signature to the promissory note. To sanction such a procedure would be a reproach to the court.
Judgment reversed.
