Payne v. Loan & Guaranty Co. of Connecticut

Collins, J. A good cause of action was stated in tbe complaint herein, and tbe relief demanded was perfectly proper. Tbe objections made by defendant’s counsel upon tbe trial really amounted to a claim that, upon tbe allegations found in tbe pleading, plaintiff was not entitled to tbe relief demanded, which was tbe satisfaction and cancellation of ber note and mortgage, with such other [257] and further relief as was just. Even had such an objection to the complaint been raised by demurrer, it would have been of no avail. Connor v. Board of Education. 10 Minn. 439, (Gil. 352.) The delivery of plaintiff’s negotiable promissory note and real-estate mortgage, although the design was to immediately place the latter on record, was really conditional, the condition being that the amount agreed upon and represented by the note should be paid over to the mortgagor. She was not obliged to accept a less sum, nor was she compelled to resort to an action at law to collect that portion withheld by the defendant corporation, if any there was. If the latter failed to fully comply with the terms of its agreement, full and adequate relief could not be had short of a return of the note and a satisfaction of the record of the mortgage, proper terms being imposed by the court as to payment of that part of the loan which had come to the hands of the plaintiff mortgagor, and which, according to the pleadings, she had offered to return and pay. Her right to the relief could not be -made to depend upon the solvent or insolvent condition of the mortgagee, nor could she be deprived of this relief because a part of the, money had been paid over to her. We are of the opinion that a sufficient demand for the unpaid portion of the loan was shown. There was no real controversy about this on the trial. Unquestionably the money had been sent by defendant company to* Stoddard & Co., at Minneapolis, and by that firm forwarded to Stevens & Co., at Litchfield; and plaintiff’s agent had repeatedly endeavored to obtain it from the latter firm, but without success. Appellant’s counsel assign as erroneous various rulings of the trial court excluding testimony offered for the purpose of showing that Stevens & Co. were respondent’s agents, and not the agents of their client, and this was the real question in the case. Of this class of testimony was the application for a loan offered by the defense, and excluded by the court. The paper did not purport tG bear the plaintiff’s signature, or to have been made by her personally, but was Signed “Adáie Payne, Applicant, by R J. Payne.” Without referring to the discrepancy between the plaintiff’s Christian name “Ada” and that of “Addie,” it may be said that the court could not assume that the signature “R J. Payne” was that of plaintiff’s husband and conceded agent, and no attempt was [258] made to prove or identify the alleged signature to he his. The court ivas right when holding that no foundation had been laid for the introduction of this paper as against the plaintiff’s objection. (Opinion published 55 N. W. Rep. 1128.) Upon objection being made by plaintiff’s counsel the court refused to allow defendant’s witnesses to answer several questions, which, in the absence of other evidence, might have had a bearing upon the main issue between the parties. Such, for instance, as the question respecting a correspondence between Stevens & Co. and defendant in relation to this and other loans, and whether the former were furnished by the latter with blanks upon which to make applications for loans. The court below may haAre been somewhat strict in its rulings, but, when made, the officers of the defendant corporation had already testified that they did not know Stevens & Co.; that the correspondence was with Stoddard & Co., and with no one else; that the application came through Stoddard & Co., and that blank applications were not furnished by defendant, but were gotten up by Stoddard & Co. for their own use. Had the questions been answered favorably to defendant, the evidence would have been mere repetition. No harm could have resulted by its exclusion, and hence the rulings, if wrong, did not constitute prejudicial error. The certificate of the trial judge fails to state that the settled case contains all of the eiddence produced upon the trial, and the fact cannot be inferred from anything appearing in the record. Hence we are unable to pass upon appellant’s eighteenth specification, that the court erred when directing a general verdict in plaintiff’s favor. Error in this respect has not been made to appear. Order affirmed.