Blackfoot State Bank v. Crisler

• Decision Date: 21 October 1911
• Parties: THE BLACKFOOT STATE BANK, a Corporation, Appellant, v. M. P. CRISLER, Respondent
• Court: Idaho Supreme Court

118 P. 775

20 Idaho 379

THE BLACKFOOT STATE BANK, a Corporation, Appellant, v. M. P. CRISLER, Respondent

Supreme Court of Idaho

October 21, 1911

APPEAL-SUFFICIENCY OF EVIDENCE-FAILURE TO RELEASE MORTGAGE AFTER PAYMENT-PENALTY.

(Syllabus by the court.)

1. Where there is a substantial conflict in the evidence this court on appeal will not disturb the findings and judgment of the lower court.

2. Evidence in this case examined, and held sufficient to support the findings and judgment.

3. In an action to foreclose a real estate mortgage, where the defense made is fraud and payment of the note and mortgage and demand has been made for the surrender of the note and the release of said mortgage, and the trial court finds that the mortgage was fraudulent and has fully been paid, the findings of the trial court which invoke the penalty of $100 as provided in Rev. Codes, sec. 3402, and renders judgment in accordance therewith, will not be disturbed.

APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge.

An action for the foreclosure of a real estate mortgage. Judgment for defendant and plaintiff appeals. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

John W Jones, for Appellant.

Where the verdict and findings are manifestly against the evidence the judgment will be reversed, notwithstanding the trial court has refused to set aside the verdict. (Works v. Kinney, 7 Idaho 460, 63 P. 596; 3 Cyc. 352, and cases cited.)

The court in this action gave judgment against the plaintiff for the statutory penalty of $ 100 for its failure to release and satisfy this mortgage. This was clearly error. (Portneuf Lodge etc. v. Western Loan & Savings Co., 6 Idaho 673, 59 P. 362.)

A. S. Dickinson, for Respondent.

"Where there is a substantial conflict in the evidence, the verdict of the jury or the findings of the court will not be disturbed on appeal." (Kendrick State Bank v. N. P. Ry. Co., 10 Idaho 483, 79 P. 457; Abbott v. Reedy, 9 Idaho 577, 75 P. 764; Sabin v. Burke, 4 Idaho 28, 37 P. 352; Coffin v. Bradbury, 3 Idaho 770, 95 Am. St. 37, 35 P. 715.)

STEWART, C. J. Sullivan, J., concurs. Ailshie, J., dissents.

OPINION

STEWART, C. J.

This is an action to foreclose a mortgage given by the respondent to the appellant to secure the payment of a promissory note for the sum of $ 1,500, dated March 23, 1909. The answer and cross-complaint of the respondent admit the issue and delivery of the note and mortgage as alleged in the complaint, and set forth as a defense that the note had been paid, and that it was procured by fraud of the plaintiff and one Claude Ferguson and H. C. Dipple, who had been partners in the drug business with the respondent at the time and prior to the giving of said note and mortgage. The trial court submitted to a jury in the case these two questions: First, were any false or fraudulent representations made by the plaintiff or its agent or servant to induce the defendant to execute and deliver to the plaintiff the note and mortgage upon which this action is brought? Second, has the note and mortgage upon which this suit has been brought been paid by the defendant? To both of these inquiries the jury answered in the affirmative by a written verdict.

In addition to the findings of the jury the court also made certain findings of fact in substance as follows:

"1st. That on the 23rd day of March, 1909, the defendant and Claude Ferguson and Harold C. Dipple were copartners, doing a retail drug business with stores located at Blackfoot, Bingham county, Idaho, Pocatello, Bannock county, Idaho, and American Falls, Oneida county, Idaho, and that said copartnership was greatly involved in debt, the plaintiff herein being one of its heaviest creditors, the indebtedness due it amounting to approximately $ 9,000.

"2d. That on that date an agreement was made and entered into among the copartners aforesaid, to sell one or more of said stores for the purpose of paying off the indebtedness, and that this fact was well known to the plaintiff, its agents and servants.

"3d. That the defendant was the owner of the real property described in the mortgage sought to be foreclosed, and that Claude Ferguson and Harold C. Dipple were the owners of certain dental instruments and office fixtures, and that it was agreed, by and between them, as such copartnership, that the defendant should assume the payment of the sum of $ 1,500 and the said Claude Ferguson and Harold C. Dipple the payment of a like sum of the indebtedness due plaintiff, and that plaintiff consented and agreed to this; that it was further agreed by and between said copartnership and the plaintiff that the sum assumed by the defendant should be evidenced by the note and secured by the mortgage herein sued upon, and that the sum assumed by the said Ferguson and Dipple should be evidenced by a note, secured by a mortgage on their dental instruments and office fixtures.

"4th. That D. R. Jones was at that time cashier of plaintiff bank, and had authority to bind it in relation to said matter.

"5th. That it was further agreed that in consideration of the execution and delivery of the note and mortgage herein sued upon, that the first moneys, notes or other property received by said copartnership from the sale of all or any part of its property should be applied to the payment of the note herein sued upon, and that as soon as a sufficient amount had been received, that said note should be paid in full and said mortgage released.

"6th. That the agreement mentioned in the foregoing finding was made with the full knowledge and consent of the plaintiff, and with the full knowledge, acquiescence and consent of D. R. Jones, and that the plaintiff then and there agreed that as soon as a sufficient amount of money, notes or other property should be realized by said copartnership, from the sale of all or any part of its property, and was turned over to it that it would apply the same to the payment of the note herein sued upon, and upon the payment of the note would release the mortgage sought to be foreclosed; and that the note herein sued upon should be paid before plaintiff received one cent upon any indebtedness whatever due it by the said copartnership, or any individual member thereof, and that when same was paid plaintiff would release said mortgage and free defendant's property from the lien.

"7th. That D. R. Jones represented to the defendant that he would fully comply with all the terms of said agreement upon the receipt of a sufficient amount of cash, notes or other property to pay off and discharge the note herein sued upon.

"8th. That the terms of said agreement were reduced to writing, signed by the defendant and by the said Claude Ferguson and Harold C. Dipple, and by mutual agreement placed in the hands of D. R. Jones, plaintiff's cashier, for safekeeping, and that he afterwards destroyed it.

"8th. That all the representations of the plaintiff made through its agent and servant D. R. Jones, and of the said Claude Ferguson and Harold C. Dipple to the defendant, as set out in the defendant's cross-complaint and in the foregoing findings of the court, were so made by them with the intent to deceive and to defraud the defendant.

"9th. That the defendant, M. P. Crisler, believed said representations, and relying thereupon executed and delivered the said note and mortgage herein sued upon.

"10th. That the said Claude Ferguson and Harold C. Dipple did not execute and deliver to the plaintiff the note and mortgage as agreed with the defendant, and that the plaintiff did not require or demand a compliance on their part with the terms of said agreement, and that this was so intended, by the plaintiff, and by D. R. Jones at the time said representations were made to the defendant.

"11th. That on or about the 26th day of April, 1909, said copartnership sold the store at American Falls, Oneida county, Idaho, and received in payment therefor notes amounting in the aggregate to approximately the sum of three thousand two hundred dollars, and that same was delivered to the plaintiff bank, and that it received and accepted same.

"12th. That thereupon the defendant made due demand upon the plaintiff and upon D. R. Jones to cancel and return said note to him, and to release said mortgage, which said demand was refused by the plaintiff and by D. R. Jones, and that said mortgage has never been released up to the trial of this cause.

"13th. T...