Voak v. National Inv. Co.
| Decision Date | 01 December 1892 |
| Citation | 53 N.W. 708,51 Minn. 450 |
| Parties | John E. Voak et al. v. National Investment Co |
| Court | Minnesota Supreme Court |
Argued November 2, 1892
Appeal by defendant, the National Investment Company, from a judgment of the District Court of Ramsey county, Kerr, J entered April 7, 1892, against it for $ 905.38.
Appeal also by defendant from an order of that court made July 19 1892, refusing to set aside the judgment and allow it to interpose a supplemental answer setting up a counterclaim for mechanics' liens paid by it since the trial.
Both appeals were argued and decided in this court at the same time. The first involves only questions of fact and the exercise of the discretion of the trial court in refusing defendant's request at the trial to change its answer of payment to one excusing nonpayment. The second appeal presents only the question of the rightful exercise of the discretion of the trial court in refusing defendant's motion to set aside the judgment and allow it to interpose a supplemental answer setting up as a counterclaim the payment of mechanics' liens on the property mortgaged to it with covenants against incumbrances.
The discussion here was upon questions of fact and judicial discretion.
Upon the whole case, we are of opinion that the order and judgment appealed from should be affirmed.
William G. White, for appellant.
J. M Hawthorne, for respondents.
The case before us tends to show the following state of facts One Janzen, being the owner of a certain tract of land, sold or contracted to sell it to a Mrs. Shickling for the price of $ 2,400. The price was not then paid, nor was the land then conveyed to her. The tract was then divided into eight lots, and Mrs. Shickling proceeded to erect houses on four of them. When the houses were about completed, Mrs. Shickling bargained to sell two of the lots thus improved, -- one to a Mr. Yager, and the other to a Mr. Arbuckle. Such being the situation, one George Shickling, the husband of Mrs. Shickling, having authority from her so to do, as well as from Yager and Arbuckle, negotiated for a loan from the defendant of the sum of $ 1,100 on each of the four lots thus improved. Accordingly Yager executed his promissory note to the defendant for $ 1,100, and secured the same by a mortgage of the lot bargained to him as aforesaid. Arbuckle did the same, and Mrs. Shickling executed her two notes for the same amounts, and secured them by mortgages upon each of the other two improved lots. Afterwards, and on the 22d day of November, 1890, George Shickling, by written order signed by himself, directed the defendant to pay to Janzen $ 2,420, "and charge to loan account." This was the amount for which Mrs. Shickling had purchased the property; $ 20 of interest on the purchase price having then accrued. The defendant made this payment to Janzen, and the latter then conveyed the whole premises by deed to Mrs. Shickling, and she conveyed to Yager and Arbuckle, respectively, the lots previously bargained to them. It seems that on the same 22d of November Yager and Arbuckle, each for himself, made and delivered to George Shickling separate written orders to the defendant, each directing it to pay to him, Shickling, "$ 1,100, less commission and other loan expenses on account of loan." There was evidence tending to show that Shickling did not deliver these orders to the defendant until after the 22d of November, and not until after the payment by the defendant to Janzen. The evidence further tended to show that after the defendant had made the payment to Janzen it sought from Mrs. Shickling a formal written acknowledgment that this payment was made by her authority; and on or about the 28th of November she executed an instrument, the greater part of which had been prepared by the defendant, reciting the loans made to Mrs. Shickling, the necessity for procuring a deed from Janzen to vest the title in her, and acknowledging that the money paid to Janzen had been paid by her authority and consent. The defendant subsequently made other payments on the order of Shickling, some of which were for labor performed or material furnished for the erection of the houses.
In June, 1891, Shickling assigned to these plaintiffs his rights, as assignee of Yager and Arbuckle, as to any amount remaining unpaid by the defendant of the aggregate sum of $ 2,200, which the defendant was to loan them, and for which it held their notes and mortgages, as before stated. This action is for the recovery of an alleged balance of those...
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