280 N.W. 849 | Minn. | 1938
Her husband, Roy Sykes, owned an undivided half interest, which he had mortgaged, in a farm. He and his wife occupied another farm, under a lease executed by him alone, owned by W.H. Labbitt. Unable to meet a rent payment due under the lease in the fall of 1931, Roy Sykes gave a second mortgage on his interest to Labbitt. Confronted with a like difficulty the following year, it was arranged that Labbitt should have a third mortgage to secure a note for $628.58, the amount of the rent for 1932 then unpaid. This last note and mortgage were executed August 3, 1933, by respondent and her husband. The former affixed her name to the note in reliance upon the representation of Labbitt's attorney that her signature on both instruments was essential to their legal sufficiency. Thereafter the first mortgage was foreclosed and the security sold. Immediately preceding the expiration of the redemption period, Labbitt redeemed as second mortgagee and conveyed the half interest to Parkin, throwing in the note secured by the third mortgage, in consideration for the amount paid to redeem from the foreclosure sale plus $500.
Some time afterward Parkin brought suit upon the note against both Roy and Hilda Sykes, both of them appearing thereon to be the makers. The latter separately answered that no consideration was given her for joining with her husband. Parkin in reply entered a general denial. The cause went to trial on this issue, and at the close of the evidence, which tended to prove the facts previously stated, the court instructed the jury that "the issue of fact for you to determine here is whether or not she signed the mortgage because *251 she was told she must sign in order to make her husband's obligation legal or whether she signed in order to stay upon the farm and to satisfy the landlord and his demands. If you find by a fair preponderance of the evidence that she signed the mortgage because she was told that she must do so in order to make the proceedings of her husband legal then you will find that she is not liable." Appellant neither objected to this instruction nor suggested further instructions. The jury found for the respondent.
As to her husband, Roy Sykes, the trial court directed a verdict against him. Appellant contends that respondent was an accommodation maker and primarily liable since consideration for the note was given Roy Sykes.
Accepting appellant's diagnosis of the case, "the only question before the court is — whether said respondent Hilda Sykes is liable on the note as an accommodation maker thereof." According to 2 Mason Minn. St. 1927, § 7072, "An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person." He is a party to a negotiable instrument for the purpose of lending his credit to another. Warner v. Fallon Coal Mines Co.
The note is prima facie evidence of consideration, and the burden was upon respondent to prove want of consideration. Erickson v. Husemoller,
Affirmed. *253