217 N.W. 934 | Minn. | 1928
Before the draft was collected the drawer, being insolvent, closed. At the solicitation of defendant's officer in charge, plaintiff gave defendant his note for $311.85 dated back to December 15, 1923. He apparently acted honestly. The bank official told him that he (the bank) had received no money on the check. Plaintiff presumably supposed this was because of the closing of the bank. Later he renewed the note with interest. Soon thereafter he learned the facts and brought this action to cancel the note for want of consideration and fraud. The court found against him. We will not discuss the claim of fraud.
1. Defendant had a perfectly good check which it presented to the drawer bank. The money was there to pay it. Defendant was entitled to the money and could have had it. For reasons of its own it saw fit to accept a draft. It did not do that for or in behalf of plaintiff. To the extent that it was acting for him it had no right to take anything but money. Hommerberg v. State Bank of Slayton,
2. When the note which plaintiff seeks to cancel was given, he did not owe defendant anything. He got nothing for the note which was without consideration. The note imports a consideration, but that merely makes a prima facie case which was completely destroyed by the admitted and uncontroverted facts.
Reversed with directions to modify the findings and enter judgment for plaintiff. *535