Plymouth Cnty. Bank v. Gilman
| Decision Date | 31 October 1889 |
| Citation | 50 N.W. 194,6 Dak. 304 |
| Parties | Plymouth County Bank v. Gilman. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Minnehaha county; J. E. Carland, Judge.
Action by the Plymouth County Bank against Frazier Gilman on a promissory note. The court directed a verdict in plaintiff's favor, and defendant appeals. Reversed.
The note was for $412, dated January 18, 1875, and payable March 18, 1875. To secure the payment of this note defendant delivered to plaintiff, as collateral security, six other notes, executed by one Martin Mason, and aggregating $1,150. These collateral notes were secured by mortgage on improved city lots, worth the face value of the notes, when delivered to plaintiff; and it was understood between the parties that plaintiff would collect the collateral when due, and apply the proceeds on defendant's note, and pay the excess to defendant. In August, 1875, plaintiff accordingly placed these collaterals in the hands of a reputable firm of attorneys for collection, and in October, 1876, a decree foreclosing the mortgage was rendered in plaintiff's favor. Plaintiff thereafter took no further steps to enforce the collection of the collateral until in December, 1880, when all previous proceedings in the foreclosure case were set aside, on account of their invalidity. A second foreclosure was had, a decree was rendered October 17, 1881, and the property sold thereunder for a sum sufficient to pay $21 over the expenses of the sale. Plaintiff thereupon brought the present action against defendant on his note. Defendant interposed an answer and counter-claim praying for judgment against plaintiff for negligently delaying the collection of the collateral security until the property had become worthless, and prayed for judgment for the difference between the face value of his note and the collateral notes. Plaintiff replied that it had delivered the collateral notes and mortgage to a firm of reputable attorneys for collection, and that it was owing to their negligence that they were not sooner enforced. At the trial, the above facts, together with the allegations of the counter-claim and reply, were established. The court directed a verdict in plaintiff's favor on the ground that the plaintiff had done its entire duty in selecting a reputable firm to collect the collateral notes, and could not be charged with their negligence.
C. S. Palmer, for appellant. C. H. Winsor, for respondent.
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Okla. City Elec. v. Baumhoff
...in this case, and has therefore become the law of the case. An examination of the records and statement of the appeal in Bank v. Gilman, 6 Dak. 304, 50 N.W. 194, discloses the fact that on a former trial, upon substantially the same evidence as given on the second trial, resulting in the ju......
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Oklahoma City Elec., Gas & Power Co. v. Baumhoff
...in this case, and has therefore become the law of the case. An examination of the records and statement of the appeal in Bank v. Gilman, 6 Dak. 304, 50 N.W. 194, the fact that on a former trial, upon substantially the same evidence as given on the second trial, resulting in the judgment fro......
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Plymouth County Bank v. Gilman
...in this case, and has therefore become the law of the case. An examination of the records and statement of the appeal in Bank v. Gilman, 6 Dak. 304, 50 N.W. 194, discloses the fact that on a former trial, upon substantially the same evidence as given on the second trial, resulting in the ju......
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Plymouth County Bank v. Gilman
...to show a loss of the security by the negligence of attorneys, it was error to direct a verdict in favor of plaintiff. Bank v. Gilman, 6 Dak. 304, 50 N.W. 194. From the evidence introduced by appellant; and the admissions of respondent in its reply, it appears that a proceeding to foreclose......