Askegaard v. Dalen

• Decision Date: 25 November 1904
• Citation: 93 Minn. 354,101 N.W. 503
• Parties: ASKEGAARD v. DALEN.
• Court: Minnesota Supreme Court

93 Minn. 354

101 N.W. 503

ASKEGAARD

v.DALEN.

Supreme Court of Minnesota.

Nov. 25, 1904.

Appeal from District Court, Clay County; L. L. Baxter, Judge.

Action by David Askegaard against Andrew S. Dalen. Verdict for defendant. From an order denying a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

1. In an action upon a promissory note executed by respondent to a third person and indorsed to appellant, held: The evidence was sufficient to sustain a holding that the note was given to cover losses, advances, and commissions growing out of the purchase of an option on wheat; that the transaction was illegal, the note without consideration, and that the burden of proving he was an innocent purchaser, in good faith, rested upon appellant when such defense was made out. Wm. R. Tillotson and F. H. Peterson, for appellant.

C. G. Dosland, for respondent.

LEWIS, J.

Action upon promissory note of $350, executed by respondent to E. F. Ludwigsen and indorsed by him. Defense, no consideration and void, the note having been given for the amount of losses, advances, and commissions sustained by Ludwigsen and appellant in the purchase of wheat options on behalf of respondent, which amounted to a wager on the future price of wheat. The trial court sustained the defense, and the appeal presents the question: Is there sufficient evidence to sustain the findings of the trial court?

The parties hereto all resided in Clay county, Minn. The note having been introduced in evidence by appellant with the indorsement of the payee established a prima facie case. Respondent testified in defense that he was contemplating the purchase of wheat upon the board of trade at Duluth; that Ludwigsen told him not to send to Duluth, that he and appellant, who lived in an adjacent village, would attend to the matter for him; that respondent thereupon gave Ludwigsen $150 to send to appellant, which was the margin required for the purchase of 3,000 bushels of wheat. Respondent further testified that a couple of days thereafter Ludwigsen showed him a telegram from appellant, which stated he had purchased the wheat at 86 cents a bushel; that Ludwigsen represented to respondent that he and appellant would take care of the whole transaction for him; that afterwards Ludwigsen came to respondent's house, and requested him to give appellant a note for security, as he had not paid him enough, and assuring respondent he need have no fear and that everything would be all right; that respondent then executed a note payable to Mr. Ludwigsen, which was dated back to the previous October. In answer to the...