Saalfield v. Manrow

Opinion by Me. Justice McCollum, James Manrow was a clerk in the law office of McSweeney & Byles who were the agents of Baker & Whitehead for the collection of their rents. Manrow, acting for McSweeney &' Byles, collected these rents and appropriated $780.13 of the' same to his own use. When the embezzlement was discovered he admitted it and called upon his father, the defendant in this case, and said to him' “ that he-had got into trouble in the office about some money matters, and wanted him to go down and see what he could do about it.” The defendant complied with his son’s request, and his visit to the office resulted in his giv-' ■ing his note to Baker & Whitehead for the sum embezzled, and his mortgage to secure the same. The note and mortgage were assigned by the payees and mortgagees to the First National ’ Bank of Bradford, which assigned them to the plaintiff. The defendant alleges that he was induced to give tire bond- and mortgage by a promise which was not kept, and by a threat to-arrest and imprison his. son if he did not give them. He testified on the trial that Byles, in the presence of Baker and [117] Whitehead, explained to him the nature and amount of James’s defalcation and proposed that he should give his note and mortgage for it, payable in four months ; that he protested his inability to pay it, and Byles then said he would not have to as MeSweeney could furnish James employment “ at fifty dollars a month and found,” and. that Baker and Whitehead would take his note as security that James would do the work and ■turn the money over to them, and that they would extend the note from time to time to enable James to pay it. He testified further that Byles said if he did not do this he would prosecute James for embezzlement. He testified also that he gave the bond and mortgage on the terms or conditions stated by Byles. He then testified that neither MeSweeney nor Byles furnished any employment for James after the bond and mortgage were executed. He called Baker and Whitehead to corroborate him in his statements relating to the employment of James by Me-Sweeney, but their evidence clearly negatived his claim in this respect. Byles testified that he made no threat to prosecute James, or promise to procure employment for him. In this he was corroborated to some extent by the testimony of John Finnerty. The learned court below directed the jury to find for the defendant on the ground that there was no consideration for the mortgage, and this instruction constitutes the complaint of the plaintiff on this appeal. Was it authorized by the evidence? We think it was not. It is true that the note and mortgage were given for the debt of James, but it might fairly be inferred from the testimony that they were given on his request and that the giving of them suspended the right of action for it at least four months. According to the defendant’s own version of the transaction, it afforded James an opportunity to pay in twenty monthly installments a debt then due. If the transaction involved an agreement by the mortgagees to extend the time for payment of the debt, in order to enable James to pay it, such agreement would constitute a sufficient consideration for the mortgage and the note secured by it. We think the evidence warranted a finding that there was an understanding between the parties which precluded the mortgagees or their assignees from bringing suit against James for the debt before the defendant’s note for it matured. Besides it is to be remem [118] bered that tbe action is upon the mortgage—a sealed instrument which imports a consideration. An illegal consideration, or the failure of a lawful one, may constitute a defence to it, but it lies on the mortgagor who alleges either, to establish it by competent evidence. In the case before us an illegal consideration was not shown. It follows from these views that the learned court erred in holding that there was no consideration for the mortgage, and directing the jury to find for the defendant. Judgment reversed and venire facias de novo awarded.