156 N.W. 494 | N.D. | 1916
This action was brought to recover upon a promissory note in the sum of $1,500, which it is alleged was executed
Appellant makes no specification of insufficiency of evidence, but presents for our consideration certain errors of law.' A number of s\xcli assignments, however, have been abandoned, and the only errors argued in appellant’s brief, and, hence, the only ones which we shall consider are: (1) Was the plaintiff’s purchase of the note in question champertous and void under the laws of this state? (2) Was defendant entitled to a directed verdict upon the grounds of nondelivery of the note or want or failure of consideration thereof? We will consider these propositions in the order stated.
He further testified:
Q. And what was that note given for ?
A. Eor $1,500 worth of stock in the Missouri Slope Brick & Tile Company.
Q. Was there any understanding or agreement as to what was to be done with the stock?
A. The stock was to be held as collateral on the note.
Q. That is, Mr. Wannemacher was not to have the stock until he paid the note ?
A. No, that says on the face of the note.
Q. I call your attention to some writing in the lower left-hand corner of the note as follows: ‘Secured by Mo. Slope B. & T. Company stock No. —’ and ask you in whose handwriting that is ?
A. That’s in my handwriting.
Q. And when was that put on there ?
A. At the time this note was made.
- Q. At the same time that Mr. Wannemacher gave this “Exhibit E,” the note for $1,500, did he purchase any other stock besides this of the Missouri Slope Brick & Tile Company?
A. He did.
Q. How many shares?
A. Ten.
Q. Who owned that ten shares ?
A. I did.
Q. Bid he give you a note for that?
A. I don’t rpmember now which it was, but I think it was.
Q. Was it understood between you and Mr. Wannemacher that tbe stock could be issued and held as security for the note?
■ A. Yes, sir.
The defendant paid the thousand dollar note and received the canceled note and the ten shares of stock. Subsequently in 1910, the Missouri Slope Brick & Tile Company became insolvent and a receiver
Appellant contends that defendant’s purchase of the note was champertous and void under the provisions of §§ 9412 and 9417 of the Compiled Laws of 1913. These sections read as follows: “Every attorney who, either directly or indirectly, buys or is interested in buying any evidence of debt or thing in action, with intent to bring suit thereon, is. guilty of a misdemeanor.” Comp. Laws 1913, § 9412.
“The provisions of §§ 9412, 9414, and 9416 relative to the buying of claims by an attorney, with intent to prosecute them, or to the lending or advancing of money by an attorney in consideration of a claim being delivered for collection, shall apply to every ease of such buying, a claim, or lending or advancing money, by any person prosecuting a suit or demand in person.” Comp. Laws 1913, § 9417.
The only evidence on the question of champerty was the testimony of the plaintiff himself.
On being called by the defendant for cross-examination, under the statute, he testified in part as follows:
Q. How did you purchase this note ?
A. I purchased this note at a sale which was advertised in the Dickinson Press, of the assets and uncolleetable accounts of the receiver of the Missouri Slope Brick & Tile Company, at public auction at the,front door of the courthouse in Dickinson.
Q. And was the note delivered to you at that time ?
A. No.
Q. Did you buy any other choses in action at that time ?
A. I bought a number of accounts at that time.
Q. And you expected to sue on them when you bought them, if necessary, for collection ?
A. I expected that if I couldn’t collect them otherwise probably suit would be necessary on some of them.
*623 Q. And in pursuance of your intent to sue, if necessary, you brought this action ?
A. Yes.
Q. Did you ever demand this of Mr. Wannemacher before bringing suit ?
A. No, sir.
Q. You knew he was a responsible party?
A. Why, I knew he wasn’t.
Q. You knew he had considerable money in the bank here at that time ?
A. No, sir. I knew just otherwise; that he wasn’t a responsible party. Mr. Heffron, I’ll tell you I knew that Mr. Wannemacher had no property in this country, and I thought the note was worth nothing, and I knew that all the property that he had was in his wife’s name, and I didn’t think the note was collectable. I also knew that he was a nonresident of this state.
Q. And that he was worth considerable money ?
A. No. And I also knew that he had a number of legitimate debts around here which he had compromised, after getting his property out of his own hands, for a great deal less than half the face value of them.
Being called as a witness in his own behalf, he testified in part as follows:
Q. Did you buy this with the sole intent and purpose of suing Mr.. Wannemacher ?
A. No, sir. I had no idea of suing on any of the accounts at that time. My real inducement in making the purchase was the brick which I knew to be of value. The accounts had been in the hands of Mr. McBride for a number of years, and he had attempted collection of them and had set them out as uncollectable, and I felt that they were' of little, if any, value.
Q. Mr. Starke, had you any idea or purpose at the time you purchased these notes, or any other time, of harassing or annoying Mr. Wannemacher ?
A. Not at all. I knew Mr. Wannemacher not at all. Knew nothing of him.
There is no evidence in this case showing that plaintiff bought the note “with intent to bring suit thereon.” But there is positive testimony to the contrary.
The defendant was therefore not entitled to a directed verdict. The disputed questions were submitted to the jury, under appropriate instructions, eminently fair to the defendant. The .jury by its verdict determined these questions adversely to the defendant. This determination is binding on this court.
Error is also assigned on the court’s ruling in sustaining objections to the following two questions put to plaintiff on his cross-examination:
Q. Do you know what the note was given for ?
*626 Mr. Murtha. Objected to as immaterial and improper cross-examination.
The Court. Objection sustained.
Q. How much did you pay for this note ?
. Mr. Murtha. I object to that as being immaterial, improper cross-examination, wholly without the issues of this case.
The Court. Objection sustained.
Mr. Heffron. Exception.
This specification, although mentioned on oral argument, was not supported by argument in appellant’s brief, and therefore may be deemed abandoned. The specification, however, if considered, is without merit.
In his answer, among other things, defendant alleges “that C. H. Starke purchased this note with other choses in action from said Missouri Slope Brick & Tile Company for the purpose of bringing suit thereon; that at the time of obtaining said transfer of said note, said O. H. Starke knew or should have known that defendant did not owe the Missouri Slope Brick & Tile Company any sum of money whatever by reason of said note, that said note was purchased and this action was instituted and maintained by plaintiff,” etc. Hence, it will be observed that defendant’s answer affirmatively alleges that the note was purchased by, and transferred to, the plaintiff. Plaintiff’s title, therefore, was not in issue, except as raised by the defense of champerty.
As already stated, the defense of champerty was first tried to the court without a jury. Both parties consented to this method of trial, and the record shows that, upon the trial of this issue before court, the plaintiff was fully cross-examined by defendant’s counsel with reference to the purchase of the note in question and the amount paid by plaintiff for the assets of the Missouri Slope Brick & Tile Company. There was no dispute as to the consideration for the note, and it was conceded that plaintiff purchased the same after maturity, and subject to all defenses which defendant might have interposed against the original holder. Hence, the defendant could not possibly be prejudiced by the rulings on these objections. In fact, appellant’s counsel does not seriously contend that this was proper cross-examination, but bases his argument on the theory that the testimony excluded was material to de
This disposes of all the questions presented for our determination, and it follows from what has been said that the judgment must be affirmed. It is so ordered.