51 Minn. 450 | Minn. | 1892
The case before us tends to show the following state of facts: One Janzen, being the owner of a certain tract of land, sold or contracted to sell it to a Mrs. Shickling for the price of $2,400. The price was not tiien paid, nor was the land then conveyed to her. The tract was then divided into eight lots, and Mrs. Shickling proceeded to erect houses on four of them. When the houses were about completed, Mrs. Shickling bargained to sell two of the lots thus improved, — one to a Mr. Yager, and the other to a Mr. Arbuckle. Such being the situation, one George Shickling, the husband of Mrs. Shickling, having authority from her so to do, as well as from Yager and Arbuckle, negotiated for a loan from the defendant of the sum of $1,100 on each of the four lots thus improved. Accordingly Yager executed his promissory note to the defendant for $1,100, and secured the same by a mortgage of the lot bargained to him as aforesaid. Arbuckle did the same, and Mrs. Shickling executed her two notes for the same amounts, and secured them by mortgages upon each of the other two improved lots. Afterwards, and on the 22d day of November, 1890, George Shickling, by written order signed by himself, directed the defendant to pay to Janzen $2,420, “and charge to loan account.” This was the amount for which Mrs. Shickling had purchased the property; $20 of interest on the purchase price having then accrued. The defendant made this payment to Janzen, and the latter then conveyed the whole
In June, 1891, Shickling assigned to these plaintiffs his rights, as assignee of Yager and Arbuckle, as to any amount remaining unpaid by the defendant of the aggregate sum of $2,200, which the defendant was to loan them, and for which it held their notes and mortgages, as before stated. This action is for the recovery of an alleged balance of those loans, not yet paid over by the defendant. The defendant claims to have paid out that full amount under circumstances making the payments applicable to those loans. The court found that there was a balance of $825.90 remaining still in hands of the lender, the defendant. Without here referring particularly to the evidence, we will say that an examination of it satisfies us that this finding of the court was justified, unless it is to be considered that the defendant rightfully appropriated to the payment made to Janzen the funds which it had obligated itself to loan to Yager and Arbuckle. On the contrary, we think that the evidence justified the conclusion, that in accordance with the inten
George Shickling, a witness for plaintiff, was shown his order on fhe defendant for $2,420, and asked on what fund the order was ■drawn. Defendant objected to this as calling for the opinion of fhe witness. The objection was well taken, for it involved the error •of allowing the witness to state his conclusions as to the result, or legal consequences, from the facts in the case. But the evidence was not received absolutely, but subject to the objection, (the parties not objecting to this course;) and upon consideration of the objection it was finally sustained, and the evidence stricken out, as appears in the return. Hence the assignment of error is not well
The answer, served in July, 1891, alleged that the defendant had paid over in full the amounts to be loaned to Yager and Arbuckle, respectively. The answer resting the defense on the ground of actual payment, the court was right in refusing to receive in evidence certain judgment rolls showing the recovery of judgments enforcing against the property mechanics’ liens, which were chargeable on the property at the time the mortgages were given. Such evidence would not have sustained the plea of payment, but only went to show an excuse or reason why payment should not be required.
The case came on for trial in the early part of February, 1892. The defendant then moved for leave to file a supplemental answer, setting forth that the mortgages from Arbuckle and Yager contained the usual covenants, including that of freedom from incumbrances, and that the mortgaged premises were incumbered by mechanics’ liens, on account of which judgments had been recovered, (February 6, 1892,) decreeing a sale of the property to satisfy the same; and that the mortgagors -were insolvent. We do not think that the court abused its discretion in refusing to allow the filing of this supplemental and amended pleading at that time. The liens referred to had been filed about six months before the defendant interposed its answer of payment, and were then known to the defendant; and the action to enforce such liens was commenced within a few days after that answer was put in, and about six months before this application to file a new answer was made. The liens constituted a breach of the covenants as completely as did the judgment subsequently recovered. Yet the defense was rested on the alleged fact of payment until the cause was about to be tried. Even then only nominal damages could have been allowed to the defendant for the breach of the covenant, for it had not paid off the liens or judg
Again, after the trial and rendition of judgment in this action, the defendant moved that the judgment be set aside, and that it be allowed to interpose a supplemental answer, setting up the facts before referred to, and the further fact that it had then paid the judgment which had been recovered on the mechanics’ lien claims. It was certainly no abuse of discretion to refuse to open the judgment for this purpose.
Upon the whole case, we are of opinion that the order and judgment appealed from should be affirmed.
(Opinion published 53 N. W. Rep. 708.)