Doherty v. Wing

SiebeckbR, J. The trial court held that the facts alleged constituted a cause of action against the defendant for a fraud perpetrated upon the plaintiff. In determining the effect of the complaint the alleged facts must be separated from the alleged conclusions inferable from such facts. The allegations of fact are that the plaintiff applied to the bank for two loans of $1,000 and $2,000, respectively, and offered to secure repayment thereof by transferring note and mortgage as collateral; that the defendant, with whom he 229 negotiated these loans, was the cashier of the bank; that it was agreed that the plaintiff was to transfer the note and mortgage to the bank as collateral to secure these loans; that the defendant wrongfully obtained from the plaintiff a written assignment which, in form, absolutely transfers the note and mortgage to the defendant; and that the defendant refuses upon demand to surrender them to the plaintiff. In effect the plaintiff also admits that he has not- repaid the loans. The plaintiff asserts that under these conditions he is damaged because the defendant holds the note and mortgage under this written assignment. It is evident that if the defendant holds the note and mortgage as collateral for the repayment of the amount of the loans he is entitled under this assignment- to retain them until the loans are fully repaid. Plaintiff confesses that the loans remain unpaid. The full effect of the allegations of the complaint is that the transfer of the note and mortgage to the defendant by the plaintiff under the written assignment operates to transfer them as collateral to secure the payment of the loans to the bank. The fact that the assignment was taken in the name of the defendant, who is the bank’s cashier, in no way destroys it as security for the benefit of the bank. The result is that the note and mortgage are held by the defendant for the bank as collateral to secure the payment of the loans. Under these circumstances no fraud has been committed against the plaintiff, and the defendant is entitled to retain the security until the loans have been paid. The complaint does not state a cause of action. By the Court.- — The order overruling the demurrer is reversed, and the cause remanded with directions to enter an order sustaining the demurrer, and for further proceedings according to law.