Hage v. Drake Marble & Tile Co.

• Decision Date: 06 February 1920
• Docket Number: No. 21601.,21601.
• Citation: 176 N.W. 192,145 Minn. 113
• Court: Minnesota Supreme Court
• Parties: HAGE v. DRAKE MARBLE & TILE CO. et al.

145 Minn. 113

176 N.W. 192

HAGE

v.DRAKE MARBLE & TILE CO. et al.

No. 21601.

Supreme Court of Minnesota.

Feb. 6, 1920.

Appeal from District Court, Ramsey County; Olin B. Lewis, Judge.

Action by Jens Hage against the Drake Marble & Tile Company and others, with counterclaim by defendants. Judgment for defendants, and plaintiff appeals. Affirmed.

Syllabus by the Court

The evidence sustains the findings that certain notes executed by plaintiff to defendants were obtained by them for a valuable consideration and without fraud or deceit.

In directing the mortgage, assigned to defendants to secure the payments of the notes, to be sold and the proceeds of the sale to be applied not only in payment of the notes due, but also of the notes not yet due, the court did not err. Peder M. Hage, of St. Paul, for appellant.

Lightner & Young, of St. Paul, for respondents.

HOLT, J.

The action was brought by plaintiff to cancel four promissory notes given to defendants and an assignment of a mortgage securing their payment, on the ground that the instruments had been obtained from plaintiff through defendants' fraud and deceit. The answer denied the fraud and deceit charged, and as a counterclaim alleged that the notes mentioned were duly given to defendants for value; that two thereof were past due and unpaid, and they demanded judgment that no relief be granted plaintiff; that the amount due defendants be adjudicated; and that the mortgage be sold and the proceeds applied in payment of the amount found due. The court found that the notes were given for value, that the four mentioned in the complaint were unpaid, that the mortgage was assigned to secure their payment, and that the allegations of the complaint, except as stated, were not true, and ordered judgment as prayed by defendants.

The assignments of error challenge the findings. No testimony has been printed. The short statement attempted in the ‘paper book’ cannot be taken as any sort of summary of what the transcript of the testimony discloses. The appellant's brief makes no reference to folio or page in the settled case. There is a package of more than 50 exhibits in an envelope returned to this court, but with no certificate as to their authenticity. Notwithstanding this condition of the record, we have perused all the papers in the return transmitted to this court, and are satisfied that the evidence abundantly sustains the findings of the trial court that the allegations respecting the fraud and deceit charged against defendants in the complaint were untrue. Indeed, no support whatever could be found in the record for findings to the contrary.

[1] The short facts developed at the trial are these: Plaintiff's son, an attorney, had made various collections for defendants and another client for which he had not remitted or accounted when he entered the army. When he left for the...