188 N.W. 573 | N.D. | 1922
Lead Opinion
Action for damages, claimed to have been sustained by reason of the transfer by the defendants of a note alleged to have been obtained from the plaintiffs by fraud and false representation, and upon which the transferee had recovered a judgment against plaintiffs. This is an appeal from the judgment for the plaintiffs, and from an order denying a motion for a judgment notwithstanding the verdict, or for a new trial.
In March, 1916, John and Emil Wuest entered into a contract with G. C. Richmond, for the purchase of a half section of land in Morton county. The land was later conveyed to Charles E. Richmond, subject to the contract. The contract embodied the usual provisions contained in crop payment contracts, requiring the purchasers to crop the land and to apply the proceeds of one-half the crop to the payment of interest on the principal sum and any surplus to the principal, reserving title in the vendor until the settlement is made each year. It stipulated for the making of certain improvements which should attach to and become a
On the day that action was set for trial in the district court of Grant county, the plaintiff herein met the defendant Ryan, agent for the defendant Richmond, at the courthouse, and, after some talk regarding a settlement, the plaintiffs gave a note for $1,200. The settlement was effected without the knowledge of the attorney for the Wuests, who was, at that time, in the courthouse engaged in the 'trial of a case. A few minutes after the settlement was made, however, the Wuests’ attorney learned of it and demanded a return of the note, which demand was refused. It seems that the note was promptly sent to the defendant Richmond, who resided at Plainview, Minn., and by him transferred to the Plainview State Bank. At maturity an action was brought by the bank, and judgment obtained against the makers, the plaintiffs in this action. This action was then brought to recover damages based upon fraud in the procurement and transfer of the note in the circumstances indicated. The fraud alleged in the complaint consists in representations claimed to have been made by Ryan at the time he obtained the note, to the effect that he had talked with Murray, attorney for the defendants in the action then pending, and that he had said that Emil Wuest had no defense to the action and that judgment would be rendered against him for the full amount claimed; and that Murray had also stated that the defendants should sign the note for $1,200 in settlement of the action. At the trial, evidence was offered to prove these allegations, all of which was disputed by the defendants, who claimed that the settlement was made upon the solicitation of the plaintiffs and upon a basis which was entirely fair.
The first assignment argued upon this appeal is that the verdict is excessive. It is for the sum of $1,800, with interest at 6 per cent, from
There are a number of assignments based upon the admission in evidence of exhibits, consisting of files in the previous litigation. We can see no merit in these assignments as, without tHe files, the character of the controversy, in settlement of which the defendants claim the note was given, could not well be understood. Neither can we see wherein assignments based upon the testimony of the court reporter and of plaintiff’s counsel are meritorious. This testimony merely tended to explain the issues tried in the Plainview Bank Case, and, even though it might have been objectionable, we cannot see wherein prejudice could have resulted.
The other assignments based upon rulings on evidence have been carefully examined, and we find them to be without merit. The record shows that the defendants were not prevented from introducing abundant evidence to substantiate their claim, that the note was given in settlement of pending litigation, without being induced by any false or fraudulent representations. It also shows that they were not unduly restricted in cross-examining the plaintiff’s witnesses.
It is argued that the court erred in refusing to grant the defendants’ motion for a directed verdict, and in this connection it is pointed out that tiie judgment on the note is not paid, and that, at the time of this trial, there was a motion for a new trial pending. Conceding that the judgment in the action on the note was not paid and that, at the time of the trial, it had not become final, owing to the pendency of the motion for a new trial and to the fact that the time for appeal had not expired, it does not follow that the defendants are entitled to a directed verdict. The legal injury or damage which furnishes the basis for the plaintiffs’ cause of action arises from the wrong done in obtaining and transferring the note in the manner hereinbefore stated. The legal injury is completed before the maker of the note is compelled to pay it, and exists so
We have considered the assignments of error on the instructions and find them to be without merit. The judgment is amended, as herein-before indicated, and, as so amended, it is affirmed.
Concurrence Opinion
(specially concurring). It appears plain that plaintiffs are entitled to maintain this action, but that the judgment should be modified to the extent stated in the main opinion. No question arises in this case relative to the equities of the plaintiffs, if any, in the land they purchased.
