Giddens v. Williams

• Decision Date: 30 January 1967
• Docket Number: No. 10331,10331
• Citation: 148 N.W.2d 181,82 S.D. 447
• Parties: Albert H. GIDDENS, Plaintiff and Respondent, v. Robert C. WILLIAMS and Mary E. Williams et al., Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 181

148 N.W.2d 181

82 S.D. 447

Albert H. GIDDENS, Plaintiff and Respondent, v. Robert C. WILLIAMS and Mary E. Williams et al., Defendants and Appellants.

No. 10331.

Supreme Court of South Dakota.

Jan. 30, 1967.

William M. Rensch, Rapid City, for defendants and appellants.

Bottum & Beal, Rapid City, for plaintiff and respondent.

ROBERTS, Judge.

Plaintiff Albert H. Giddens commenced this action in the Circuit Court of Pennington County seeking a judgment against defendants Robert C. Williams and Mary E. Williams upon a promissory note and foreclosure of a real estate mortgage securing the payment of the note payable in monthly installments of $100 commencing November 1, 1955, and continuing monthly until the full amount of the principal in the sum of $2500 and interest was paid. Defendants are owners of the premises described in the mortgage and plaintiff the mortgagee. Defendants admit in their answer that they made and executed the note and mortgage, but deny that they received any consideration. They allege that the loan proceeds were paid by plaintiff to Christine Smith. Findings were in favor of plaintiff holding that the mortgage was a valid obligation given for a good and valid consideration. From the judgment decreeing foreclosure, defendants appeal.

The note and mortgage in question were signed on July 30, 1955. The mortgage was recorded on August 1, 1955. The instruments were then mailed to Albert H. Giddens residing in Nashville, Georgia, and received by him prior to August 8, 1955. Defendants contend that the note and mortgage were delivered under a promise that the mortgagee would forward to them the loan proceeds.

The evidence discloses that defendant Robert C. Williams was engaged in the business of retailing and repairing sewing machines and vacuum cleaners in Rapid City. Christine Smith had been employed at different times by him from 1951 to February 1955, at which time she returned to her former home in Georgia. Defendants contend that after the note and recorded mortgage had been mailed to plaintiff Giddens, he refused to complete the loan and made a loan in the amount of $2500 to Christine Smith. Mr. Williams testified: 'Well, she called me by telephone on August the 8th, and * * * told me that Mr. Giddens would not loan me the money, even though they had received the mortgage and note, but that he (Giddens) trusted her; he was a life-long companion and that he would give her the money direct, without collateral; and she, in turn, propositioned me that-that she would buy into my business with this twenty-five hundred dollars.' Following this conversation Mr. Williams wrote a letter to Christine Smith reading in part as follows: 'I took a couple of pictures of the house so that they there will have some idea of the security you are offering. 'I'll have them developed and sent out tomorrow.'

Plaintiff testified by deposition that he was not acquainted with either of the defendants; that Christine Smith handled the negotiations; that the cashier's check on the Citizens Bank of Nashville, Georgia, was made payable to Christine Smith 'because she had made all of the arrangements and had described the property they were putting up as security in that city--Rapid City, South Dakota'; and that he had received photographs of the residence referred to by Christine Smith as the property described in the mortgage. The two photographs were offered and received in evidence. Plaintiff introduced in evidence a cashier's check for $2500 payable to the order of Christine Smith and bearing a cancellation showing that it was paid on September 13, 1955. It was...