Montgomery v. Fritz

• Decision Date: 23 April 1898
• Court: North Dakota Supreme Court

75 N.W. 266

7 N.D. 348

GEORGE MONTGOMERY v. GEORGE FRITZ

Supreme Court of North Dakota

April 23, 1898

Appeal from District Court, Richland County; Lauder, J.

Suit by George Montgomery against George Fritz. There was a decree for plaintiff, and defendant appeals.

Affirmed.

Geo. W Freerks and McCumber & Bogart, for appellant.

Philetus Smith, for respondent.

OPINION

BARTHOLOMEW J.

This was a foreclosure action. The indebtedness secured was a promissory note of $ 1,400, given by the defendant and appellant to the plaintiff and respondent. The execution of the note and security was admitted, and defendant pleaded as a defense that the note was given for an alleged balance due from defendant to plaintiff upon an account stated between them, covering various monetary transactions theretofore had between said parties; that plaintiff had kept the books of accounts covering such transactions, and that he (plaintiff) stated to defendant that said balance was due from defendant to plaintiff by reason of said transactions; and that defendant, believing and relying upon such statement, was induced to give, and did give, his note for such balance, but that in truth and in fact said representations and statements concerning said account so made by plaintiff were false and fraudulent, and that nothing was due or owing from defendant to plaintiff by reason of said transactions, and said note was wholly without consideration. The trial resulted in findings and decree in favor of plaintiff, and the case comes to this court upon the full record.

A number of errors are assigned upon the admission and rejection of testimony. Of course, in cases of this character, that come to this court strictly for trial de novo, under section 5630, Revised Codes, the trial court has no discretion in the matter of admitting evidence. All the evidence offered must be received. But a party may object to any evidence offered, and thereby bring the matter to the attention of the trial court, and he may have his objections entered of record, so that he may again bring the matter to the attention of this court. It would be absurd to suppose that the trial court, in reaching its conclusions, considers any evidence that it thinks improperly in the record. Nor is this court required, as in cases tried before a jury, to make any ruling for the guidance of the trial court upon a retrial of the particular case because final judgment is ordered by this court. Hence in these cases we may well omit all discussion of any question of evidence, where the point raised requires only the application of well known rules of evidence to the particular facts, and we find nothing more in this case. We make this remark in order that counsel may not conclude that the points raised have been overlooked in this class of cases.

Having admitted that the account in this case was settled and stated at the amount of the note, defendant accepts the legal proposition that it can be opened or corrected only on the ground of fraud, mistake, omission, accident, or undue advantage, and that the burden is upon him to establish the fraud upon which he bases his defense. Plaintiff concedes the right to open and correct the account for the reasons and in the manner stated, and, as the parties are thus agreed upon the law that controls the case, it only remains to consider the evidence on the single question of fraud, as that is the only defense here pleaded. As no itemized account was ever presented, it is not possible for defendant to assign fraud upon any one item or transaction, nor does he seek so to do. He claims the right to investigate all the prior transactions between the parties, and this right is apparently conceded. The first transaction between these parties was upon February 11, 1893, and consisted in the purchase by defendant from plaintiff of a half interest in a stock of merchandise, and the building and lots where the same was kept, in the Villaage of Lidgerwood, in Richland County. The parties do not agree as to the contract price there being a difference between them of about $ 200. Defendant paid no money on the purchase, but executed to plaintiff his promissory notes for $ 3,025. Plaintiff claims that another note for $ 175 was given a few days later. In April following, defendant purchased the other half of the real estate. The parties are not in accord as to the amount paid therefor, nor as to whether it was paid in property or notes. On May 27th following, defendant bought the other half interest in the stock. There is a difference between the parties, as shown by the testimony, as to the...