83 N.W. 20 | N.D. | 1900
Lead Opinion
This action was originally commenced by Frank W. Herline, as guardian of the estate of Ralph W. Shepard and Fred L. Shepard, minors, to recover for his wards the amount due upon a certain promissory note executed by the defendant, and which it is alleged is the property of these minors,' and is wholly unpaid. After the issues in the case were joined, and some time prior to the trial of the action, Hefline resigned as guardian; and the County Court of Cass county, which had appointed him, appointed in his place W. C. Resser, who, by stipulation of counsel, was substituted as plaintiff. At the close of the case, the District Court, upon motion of plaintiffs’ counsel, directed a verdict in plaintiffs’ favor for the full amount claimed, and judgment was ordered and entered on the verdict. Defendant’s appeal is from the judgment, and, in a settled statement, he presents for review numerous alleged errors of law. Among these, the only one we shall have occasion to notice is the order directing a verdict for the plaintiffs. The defendant’s answer admits the execution of the note, but specifically 'denies that it is or ever was the property of the plaintiff’s wards, and alleges that the note ever was and is the individual property of Frank W. Herline, the payee named in the note, and that any transfer or indorsement thereof by him was wdthout consideration and in bad faith. For a further defense the defendant then set up three several counterclaims as existing in his favor and against Herline, as guardian, and his two wards, arising out of work, labor, and services alleged to have been done apd furnished for them at their request. The amount of these claims exceeds the amount of the note sued upon. The following is the note, in full: “Mapleton, North Dakota, July ist, 1892. Ninety days after date I promise to pay to the order of F. W. Herline one hundred and fifty-four dollars, at Red River Valley National Bank of Fargo, value received, with interest at the rate of 12 per cent, per annum. I hereby agree to pay the further sum $-as attorney’s fees, should the collection of this note be enforced by law. Ole K. Hanson.” The following indorsement appears upon the back: “Pay to the guardian of Ralph W. and Fred L. Shepard, F. W. Herline, without recourse.” The motion for a directed verdict was based upon the ground “that defendant had failed to show any defense by way of nonownership of-the note by plaintiffs, or counterclaim or payment.” This motion was granted, and, we hold, improperly granted. The ownership of the note by plaintiff’s wards was specifically controverted by the answer. It was therefore incumbent on the plaintiff to establish by evidence the ownership and title to the notes in his wards, as
There being no evidence of ownership of the note in suit by plaintiff’s wards, it was therefore error to direct a verdict in his favor, and the judgment must accordingly be reversed. But, inasmuch as a new trial must be had, we wish to refer to the counterclaims set up by defendant. Counsel for the respective parties have spent considerable time discussing the evidence, to determine whether or not there is any evidence that the contracts with the defendant which are the basis of the counterclaims were made by Herline as guardian, and for and on behalf of his wards. It is
Rehearing
PETITION FOR REHEARING.
Counsel for plaintiff have filed a petition for a rehearing, in which it is urged that the court was mistaken in asserting that there is no evidence in the record showing that plaintiff’s wards are the owners of the note in suit. They contend that there is other evidence than that sought to be derived from the possession of the instrument, and refer us to a certain written account or report made by Herline at the close of his guardianship, and filed and recorded in the county court on March 21, 1899. This document, which was received in evidence against defendant’s objection, purports to be an account of Herline’s guardianship from January 12, 1892, up to the time it was filed in the County Court. Under the heading of “Receipts” there appears this entry: “July 1st, 1892. Ole K. Hanson paid on $168 note $14.00, interest on said note $19.02.” Under the heading of “New Notes” the following entry appears : “(Stock) Ole K. Hanson, dated April 1st, 1892, due .90 days, 12 per cent, par, ren $168.” This abbreviation evidently means that the last-described note is a part renewal of the former note, and doubtless refers to the note in suit. On the margin of the report, and opposite the description of the note involved in this action, and certain other notes, these words appear: “These notes are not assets of the