148 N.W. 630 | N.D. | 1914
On December 23, 1909, plaintiff borrowed from tbe defendant bank the sum of $725, and to secure the debt executed a chattel mortgage upon four horses and 600 bushels of wheat. At that time plaintiff was living upon a government homestead, but had not made sufficient residence to obtain patent. A real estate mortgage covering the government homestead, securing the same indebtedness, was signed by the plaintiff and was filed for record the following day. Plaintiff insists that this mortgage was signed by him through the fraud of-the defendant’s cashier, who placed the same among the other papers in such a way that it was signed without plaintiff’s knowledge of its nature. There was also executed by plaintiff an application for a loan upon said government homestead in the sum of $1,000, which contains detailed answers to some twenty-seven questions regarding the plaintiff and his financial standing. Plaintiff insists that this application was signed by him under the same fraudulent circumstances. The defendant bank insists that plaintiff signed those instruments with full knowledge of their contents, and the cashier and another employee of the bank gave testimony substantiating this position. The note was extended by the bank until about.the 23d day of March, 1912. In the meantime, plaintiff had a conversation with the cashier of the bank relative to the proposed real estate loan upon his homestead, and had-informed the bank that he would need more than $1,000 to pay up his various debts, and the cashier had informed him that the bank could not negotiate such a loan, and that he might obtain a loan elsewhere. This conversation occurred in 1910. Plaintiff insists that this application for loan was signed shortly before this conversation. In the spring of 1912, plaintiff secured patent to his land, and had negotiated a loan elsewhere, and went into the banking establishment of the defendant, and asked the cashier how much he owed, and told him he had the money with him to make payment in full. There is some dispute as to the conversation that followed, but in the main it is agreed that Mr-. Orr stated that the amount due upon the note was $845.80, but that the defendant bank demanded $50 damages on account of obtaining the real estate loan elsewhere. Plaintiff thereupon tendered the said sum of $845.80 in cash, and later deposited the same to the credit ■of the bank in another reputable bank as a tender of said amount. Mr. Orr, the cashier, testifies that the tender was made upon the express con
This appeal is from this order granting a new trial.
The jury were thus advised that they might allow the actual damages which plaintiff had sustained, also the penalty provided by chapter 176, Sess. Laws 1907, of $100 for the real estate mortgage and $10 for chattel mortgage, and in addition might allow exemplary damages in case the refusal was tainted with malice. The verdict of $800 would indicate that the jury had assessed exemplary damages. Respondent
Shields v. Klopf, 70 Wis. 69, 35 N. W. 284; Giffen v. Barr, 60 Vt. 599, 15 Atl. 190, wherein it is said: “At the trial the defendant contended that exemplary damages could not be recovered in this action, and excepted to the holding of the court to the contrary. We think this holding was error. Whether the plaintiff might not have maintained a common-law action for the neglect or refusal of the defendant to discharge the mortgage upon proper request after the mortgage was satisfied, and in such action have recovered upon proof of wilful neglect, exemplary damages need not be determined. This is not such an action, but an action upon the statute by which, for the refusal or neglect to discharge the mortgage . . . the plaintiff was entitled to recover a fixed sum, $10, and ‘all damages occasioned’ by the neglect or refusal. The fixed sum of $10 was evidently intended as the limit of the damages recoverable for the neglect or refusal above ‘all damages occasioned thereby.’ Exemplary damages are based upon the wilful misconduct of the defendant in the transaction, and are not recoverable as a matter of right, are largely in the sound discretion of the jury, and cannot be said to be damages occasioned by the neglect or refusal of the defendant. Having based his action upon the statute, the plaintiff must be confined in recovery of damages to the limits given by the statute. . Hence, in this form of action, based as it is upon the statute, it was error for the court to tell the jury that the plaintiff could re
Appellant, however, contends that the citations above given apply only to actions brought to recover the statutory penalty, whereas the action herein is upon five separate counts, one of which relates to the statutory penalty, and another to the common-law cause of action in tort. We do not believe this makes any difference. The legislature, by singling out this particular tort and imposing $100 penalty in addition to all actual damages, undoubtedly considered the subject of penalties, and had they intended that punitive damages should be allowed in cases of malice, that provision would have been inserted in the law. In other words, having specifically legislated upon the subject of penalty, it will be presumed that the common law upon the subject was modified. It was thus error of the trial court to give the instruction above mentioned, and a new trial was properly granted. , .