First & Lumbermen's Nat. Bank v. Buchholz
| Decision Date | 18 May 1945 |
| Docket Number | No. 33951.,33951. |
| Citation | 18 N.W.2d 771,220 Minn. 97 |
| Parties | FIRST & LUMBERMEN'S NAT. BANK OF CHIPPEWA FALLS v. BUCHHOLZ. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Goodhue County; Charles P. Hall, Judge.
Action by First & Lumbermen's National Bank of Chippewa Falls, Wisconsin, against Paula Buchholz, doing business as Red Wing Floral Company, to recover on a Wisconsin cognovit judgment obtained against defendant on a note, wherein defendant counterclaimed. From an order overruling a demurrer to defendant's answer, plaintiff appeals.
Affirmed.
Walter F. Larrabee, of Chippewa Falls, Wis., and Albert P. Reed, of Minneapolis, for appellant.
Arthur E. Arntson, of Red Wing, for respondent.
This is an appeal from an order overruling plaintiff's demurrer to defendant's answer. The trial court certified that the question presented by the demurrer is important and doubtful, and the certification is made a part of the order.
Plaintiff, a banking corporation of Chippewa Falls, Wisconsin, secured a cognovit judgment in Chippewa county of that state against defendant, who operates a floral company at Red Wing in this state, for a balance due on a coal burner sold defendant by the National Coal Company of Chippewa Falls. Plaintiff brought suit in this state on the judgment. In its amended complaint, plaintiff alleges that the action in Wisconsin was founded upon a negotiable promissory note upon which there is a balance of $689.58; that plaintiff became a bona fide holder of the note; that the note was attached to a conditional sales contract, which was made with the express and implied understanding that the note could be detached, and that the note contained the words "detach before filing or recording contract"; and that under such circumstances the law of Wisconsin is that the note is severable and a distinct instrument, independent of the conditional sales contract.
In defendant's answer, it is alleged that on April 16, 1943, defendant executed a conditional sales contract to National Coal Company of Chippewa Falls for the purchase of "one bin type Iron Fireman automatic coal burner complete with electric equipment for alternating current with thermostat," for the sum of $1,250.50; that said burner was to be installed in a workmanlike manner; that the sum of $400 was paid as part payment, and defendant executed a note payable to the National Coal Company in the sum of $850, with the balance payable in installments; that said note was "attached to and a part of said contract of conditional sale aforesaid." It was further alleged that immediately thereafter and before the installation of the burner the National Coal Company assigned the conditional sales contract to plaintiff, together with the note attached; that plaintiff became responsible for the proper installation of the coal burner and equipment in a workmanlike manner; that plaintiff had in its possession as owner the conditional sales contract and had full and complete knowledge of the terms and conditions of the sale, including the duty to install the coal burner and equipment in a workmanlike manner; that an additional sum of $255.42 was paid under the contract, making a total amount of $655.42 paid; that the burner was not installed in a workmanlike manner, and such unworkmanlike installation caused damage to defendant in the sum of $2,500 by reason of the freezing of plants, flowers, and other vegetation, on account of which damage a recovery is sought under a counterclaim.
1. Although in the statement of questions involved set forth in plaintiff's brief it is indicated that plaintiff intended to argue the point that the defense alleged in the answer is not available to defendant in a suit on a cognovit judgment obtained in Wisconsin and sued upon in this state, the issue is not discussed in plaintiff's points and authorities in the brief, nor was it orally argued. Rule VIII3(e), Supreme Court Rules of Practice, effective July 1, 1942, provides (212 Minn. xlii):
This court will not consider any issue not urged in appellant's points and authorities or orally argued. Cutting v. Weber, 77 Minn. 53, 79 N.W. 595; City of Duluth v. Cerveny, 218 Minn. 511 524, 16 N.W.2d 779, 786. Therefore, plaintiff's position before this court is the same as if it had brought suit on the note in this state.
2. Plaintiff argues that defendant is not entitled to recover under its counterclaim, because the mere assignment of the contract to plaintiff did not create a personal liability on its part, citing Pioneer Loan & Land Co. v. Cowden, 128 Minn. 307, 310, 150 N.W. 903, 904. We need not here consider this question, for if the defense alleged by defendant that the burner and equipment were not installed in a workmanlike manner is available to her as an offset to plaintiff's claim, the demurrer must fall, even though it might be good as against the counterclaim. If, as here, a demurrer is interposed to a whole pleading and such pleading contains at least one good defense, the demurrer is bad. A. E. Johnson Co. v. White, 78 Minn. 48, 80 N.W. 838; Wild Rice Lumber Co. v. Benson, 114 Minn. 92, 130 N.W. 1; Brill v. Minnesota Mines, Inc., 200 Minn. 454, 274 N.W. 631, 112 A.L.R. 173.
3. Our discussion, therefore, will be confined to the one issue whether the defense of unworkmanlike installation of the coal burner is available as an offset against the claim of plaintiff in an action on the note. Plaintiff asserts that such defense is not available, because it is a bona fide holder of the note; while defendant contends that plaintiff took the note subject to all the defenses that might be interposed against the original payee. Although, in defendant's brief, it is stated that the note was not payable in Wisconsin, at the oral argument it was conceded that that statement was erroneous, and both parties agree that the law of Wisconsin applies to the construction of the note and contract. In determining the issues here involved, the allegations of the answer must be considered as true. Vogt v. Ganlisle Holding Co., 217 Minn. 601, 15 N.W.2d 91. From such allegations, it appears that the note was attached to the conditional sales contract by a perforation and in such condition the contract and note were assigned and endorsed to the plaintiff. At that time, the coal-burning equipment had not been installed, and the consideration under the contract had not yet moved. Plaintiff took the note and contract with full and complete knowledge of the terms thereof and with knowledge of the fact that the consideration had not yet moved; and, at...
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