Emerson-Brantingham Implement Co. v. Anderson

• Decision Date: 13 December 1920
• Docket Number: 4210.
• Citation: 194 P. 160,58 Mont. 617
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. ANDERSON.
• Court: Montana Supreme Court

194 P. 160

58 Mont. 617

EMERSON-BRANTINGHAM IMPLEMENT CO. v. ANDERSON.

No. 4210.

Supreme Court of Montana

December 13, 1920

Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Action by the Emerson-Brantingham Implement Company against Nellie Anderson. Judgment for defendant, and plaintiff appeals. Remanded, with directions.

McKenzie & McKenzie, of Great Falls, for appellant.

Burton R. Cole and E. K. Cheadle, both of Lewistown, for respondent.

BRANTLY C.J.

This action was brought on July 21, 1916, to foreclose a mortgage upon a lot situate in Great Falls, Cascade county, belonging to the defendant. The mortgage was given to secure the payment of two promissory notes executed by defendant to plaintiff on October 31, 1913, due and payable, respectively on December 1, 1913, and November 1, 1914, with interest at 8 per cent. per annum, together with attorney's fees in case it should become necessary to bring action of foreclosure. Recovery is also sought for the sum of $15 expended by plaintiff for an abstract of title of the mortgaged property, which it is alleged is also secured by the mortgage.

In her answer defendant seeks affirmative relief by way of counterclaim, demanding cancellation of the notes and mortgage on the ground that they were obtained by fraud undue influence, and without consideration. The allegations of the answer, in so far as they are material, are substantially the following: That defendant is the widow of Stephen A. Douglas Anderson, deceased, who in his lifetime was indebted to plaintiff; that she is the executrix of his will; that the estate is insolvent; that one Weston Houghton and one G. A. McFarlane, plaintiff's authorized agents and representatives, on or about October 31, 1913, demanded of defendant that she execute to plaintiff the notes described in the complaint and the mortgage to secure them in settlement of the indebtedness of the deceased; that she was not personally liable for any of the debts of the deceased; that to induce her to execute the notes and mortgage, plaintiff's said agents falsely and fraudulently represented to her that she was personally liable for the indebtedness due from the deceased to the plaintiff; that unless she should execute and deliver the notes and mortgage the plaintiff would enforce the payment of the indebtedness against her, and would seize and sell her separate property to satisfy it; that these representations were each and all of them false and fraudulent, as plaintiff's agents well knew, and that they were made for the purpose of defrauding defendant; that she endeavored to consult her attorney and ascertain whether the representations were true; that on said day her attorney was absent from his office in Lewistown, Fergus county, Mont., where she resides, and that she was not able to consult him; that the said agents did then and there represent to her that it was not necessary for her to consult an attorney; that they were men of large business affairs; that defendant was wholly unused to transacting business; that at that time she had been recently bereaved by the death of her husband; that she was in an overwrought, abnormal, and depressed condition of mind because of the death of her husband, and was unable to withstand the arguments and representations of the plaintiff's agents; that relying upon their false and fraudulent representations, and believing the same to be true, she yielded to their demands, and by reason of them made, executed, and delivered to the plaintiff the notes and mortgage; that defendant discovered the falsity of the representations so made to her, on or about December 27, 1913; that she thereupon, through her attorney, made demand upon the plaintiff for the return to her of the promissory notes and for the satisfaction of the mortgage; that the plaintiff wholly failed and refused to comply with her request; and that the defendant received no consideration or thing of value of any kind, nature, or character for the execution and delivery by her to the plaintiff of the notes and mortgage. The reply put in issue these allegations.

The court found the facts to be as alleged in the counterclaim, and concluded that the notes and mortgage were void for the reasons: (1) That the defendant was induced to execute them by reason of the false and fraudulent representations of plaintiff's agents; (2) that the plaintiff's agents secured the execution of them by means of undue influence exerted over the defendant; and (3) that she, not theretofore being indebted to the plaintiff, received no consideration for them whatever. Accordingly it rendered judgment, directing the plaintiff to cancel the notes and to satisfy the mortgage of record. Plaintiff has appealed from the judgment, and presents the question whether the findings and decision are justified by the evidence.

At the time of his death, on September 4, 1917, Anderson was indebted to the plaintiff, evidenced by promissory notes, for the purchase price of a traction engine, to secure which he had executed upon it to plaintiff a chattel mortgage. This had been renewed from time to time up to July 1, 1913. It had been overdue since that time. By his will, Anderson bequeathed to defendant the residue of his estate after the debts had been paid, and conferred upon her "full and unlimited power to sell, convey, transfer and dispose of any or all of the property * * * for the purpose of paying my debts or for any other purpose at any time after my death without obtaining an order of any court and without the intervention of any court whatever." On October 31, 1913, Houghton and McFarlane, agents of plaintiff, visited the defendant to obtain from her a settlement of the notes. They demanded payment of them. Defendant insisted that they take the engine in satisfaction of them, but they refused to do so, demanding that she should either pay them or furnish security. The following excerpts from her testimony disclose all the negotiations which then took place:

"They came in and said they came to get some settlement for this engine. * * * I told them I had nothing to pay them, and they could make some arrangement to take the engine back for what there was against it. He (McFarlane) said no, they wouldn't do that, they wanted some kind of security, but they didn't want no engine back. They wasn't in that line of business--they had engines to sell. They kept talking for quite a while. They said they would take security on a piece of land that I had. I told them that it was mortgaged before. They said they would be willing to take a second mortgage on that, and I told them I didn't want no more mortgages on it, and I would rather they would make arrangements, and I thought I could get permission from the court to turn the engine back to them for the amount that was due. I told them I didn't like to mortgage anything that I thought was my own property, and they said if I didn't give them some kind of security, they would foreclose on the mortgage and take enough other property to cover the expenses and everything concerning it. They mentioned my husband's homestead and desert. Q. You say they said if you did not give them a mortgage on something that they would foreclose on the engine? A. Yes sir. Q. And then take enough other property to pay the balance? A. Yes. Q. Mentioning especially the homestead? A. Yes. The homestead and the desert--and other property to cover the amount there was to pay what was against the engine. They sat there an hour and a half, or something like that. I don't remember exactly. He (McFarlane) said he was in a hurry to

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