Anderson v. First Nat. Bank of Grand Forks
| Decision Date | 04 October 1897 |
| Docket Number | 6731 |
| Citation | 72 N.W. 916,6 N.D. 497 |
| Court | North Dakota Supreme Court |
Appeal from judgment of the District Court of the First Judicial District; Fisk, J.
Action by Alexander Anderson against the First National Bank of Grand Forks, N. D. Judgment for plaintiff and defendant appeals.
Affirmed.
Burke Corbet, for appellant.
Defendant's exceptions and motion to suppress the deposition of Anderson were taken in time, defendant not having appeared at the time the same was taken § § 5682, 5687 and 5688 Rev. Codes. Holt v. Van Eps, 1 Dak. 209, was decided under § 1875 Civil Code of 1866, which differed materially from § 5012 Rev. Codes. Such rule conflicts with the provisions of § § 5014 and 5015 Rev Codes; and is contrary to the rule in Lovejoy v Merchants State Bank, 5 N.D. 623, 67 N.W. 956. There is no presumption that in actions on contract the amount of the notes is the amount of the recovery. Barrington v. Bank of Washington, 14 Sarg. and Rawle 405. It is not within the powers of national banks to sell mortgage notes on commission, nor is it within the implied powers of a cashier to contract that his bank shall engage in such business. Farmers' and M. Nat. Bank v. Smith, 77 F. 129.
Phelps & Phelps, for respondent.
No objections having been filed to the deposition of Anderson previous to the first trial of this action, they come too late. 5 Am. & Eng. Enc. L. 610--616. The statute contemplates exceptions to the deposition as a whole. § 5687 Rev Codes. The objection to a particular interrogatory must be taken at the time the interrogatory is put to the witness. Ward v. Whitney, 3 Sandf. 399; Love v. Tomlinson, 29 P. 666. This rule is in line with the holding that objections by their language must indicate clearly the point made against evidence to the end that the adverse party may then and there if possible save himself from the consequences of error. Kolka v. Jones, 6 N.D. 461, 71 N.W. 558. For the purpose of estimating damages, the value of a thing in action is presumed to be equal to that of the property to which it entitles its owner. Holt v. Van Eps, 1 Dak 208, 46 N.W. 689. First Nat. Bank v. Dickson, 5 Dak. 286, 40 N.W. 351; Griggs v. Day, 70 N.W. 881; Cosand v. Bunker, 2 S.D. 294, 50 N.W. 84; Booth v. Powers, 56 N.Y. 22; Potter v. Bank, 28 N.Y. 654; Griggs v. Day, 136 N.Y. 152; Thayer v. Manley, 73 N.Y. 305; Western R. Co. v. Bayne, 75 N.Y. 1; Ingalls v. Lord, 1 Cow. 240; Latham v. Brown, 16 Iowa 118. The general rule that the value of property must be ascertained by answers to direct questions as to its value, cannot apply to a chose in action. A chose in action has no intrinsic value. Its value depends on the pecuniary condition of the parties liable thereon. Potter v. Bank, 28 N.Y. 655. In the absence of evidence of want of ability to pay, the presumption of law is that the maker of a note is solvent and able to pay. Potter v. Bank, 28 N.Y. 655, 86 Am. Dec. 273 and n.; Kelsey v. Welch, 66 N.W. 390; Thayer v. Manley, 8 Hun. 551; Walrood v. Ball, 9 Barb. 271.
This cause having been tried four times in the District Court is before us a fourth time on appeal. On the last trial the trial court directed a verdict for plaintiff for the amount due upon the notes at the time of their conversion by defendant, less the sum which had been paid by defendant to plaintiff by a remittance to plaintiff on the theory that it was remitting the proceeds of a sale thereof by defendant as agent for plaintiff. In its main features the case is practically the same as on the last appeal. There is only a slight difference in the facts, none calling for any change of decision on the points already disposed of. The answer as before puts in issue the question of agency. But the undisputed facts conclusively establish such agency. It is true that the offer by plaintiff of one of the telegrams which had been repeatedly received in evidence on the former trials was strenuously objected to, and it is here urged that such telegram was not proved by competent evidence. This is the telegram from defendant to plaintiff, dated October 3rd. We may strike this from the record and yet there remains unanswerable proof of agency. Defendant's letter of September 14th contains an offer by defendant to act as agent for plaintiff in the sale of the notes in question. This letter embodies the following statement: Defendant's letter to plaintiff of October 7th reports a sale of the notes by defendant as agent for plaintiff, the sale purporting to have been made by defendant in answer to a telegram from plaintiff to defendant offering to sell at a certain discount. This telegram was in answer to defendant's proposition to sell the paper as agent for plaintiff for a small commission. In this letter of October 7th, defendant charged plaintiff a commission of $ 35 for making the sale. In view of these uncontroverted facts it becomes unnecessary for us to determine whether there was error in receiving in evidence the telegram of October 3rd. Eliminating it from the case does not in the least affect the question of agency.
Some new questions are presented to us for consideration. Among them is the question of the admissability of certain evidence offered by defendant to prove the value of the notes in question. This evidence was the opinion of experts. Prima facie the value of these notes, both at common law and under our statute, was the full amount due thereon at the time of the conversion thereof by defendant. Sec. 5012, Rev Codes, and 4615, Comp. Laws. Several witnesses were called by the defendant and defendant offered to prove by their testimony what the value of such notes was, and that the value thereof did not exceed the sum of $ 6,000. This evidence being objected to by plaintiff was excluded, and it is here urged that in so doing the District Court committed error. It is to be noted that no attempt was made to show the insolvency of the makers of these notes, or that there was any defense to them, or that any portion thereof had been paid. Indeed, it was established on the trial, and does not appear to be disputed, that the land on which these notes were secured by a mortgage was of greater value than such notes. No evidence tending to show that the security was insufficient was offered by defendant, despite the fact that the witnesses who testified on its behalf swore that they knew the value of the land. The case before us, therefore, is the case of notes executed by solvent makers, amply secured, subject to no defense, and on which the full amount of principal was due, together with some accrued interest. These notes bear a good rate of interest even for North Dakota, the rate being 9 per cent. To allow witnesses to conjecture about the future solvency of the parties, to speculate about the possible decline in the value of the security, and on such a basis express an opinion, a mere guess, as to the value of the paper would be a dangerous doctrine. Paper of this character, unlike chattels and municipal, state and national bonds, and corporate stock, is not generally bought and sold in the market, and cannot be said to have a market value. There may at times be local dealings in such securities of considerable magnitude, but we must establish the rule to apply to all communities in the state and under all circumstances. We do not think that the fact that there was at the time of the conversion of this paper a large amount of individual notes bought and sold in commercial circles in Grand Forks city, furnishes any reason why we should establish a rule that such paper has a market value, when we well know that, taking the state at large and considering the general trend of business, there is a wide distinction between chattels and such securities as marketable property. The chief dealing in paper of this kind is at the banks and loaning institutions where money is borrowed by debtors upon their notes secured or unsecured. Such paper is not sold in open market as wheat or municipal securities, or other like property. There is, therefore, no standard of value to apply to it except that which each witness creates in his own mind, basing his opinion, perhaps, upon what he would give for the property or on a conjecture as to the future solvency of the maker. In this particular case the foundation of the opinion of the experts as to the value of these notes would seem to be the risk of the future insolvency of the makers thereof. Defendant offered to prove by one of its witnesses "that the risks of the insolvency of the makers of negotiable instruments which are to become due in one, two, three, four and five years is a material element in depreciating the value of the paper, notwithstanding the fact that the parties may be perfectly solvent at the time of making or at any particular time thereafter; that the risk of insolvency itself is an element which does actually depreciate the value of the paper." Had this witness been permitted to express his opinion as to the value of these notes, we know that it would have rested largely upon the remote possibility of the future insolvency of the makers, although as a matter of fact the notes were adequately secured and were therefore good without reference to the solvency of such makers. Extreme cases can be imagined where the rule which we follow in this case may work some slight measure of hardship; but in the great majority of instances, indeed, in...
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