Hamilton v. Diefenderfer
| Decision Date | 19 July 1913 |
| Docket Number | 676. 677 |
| Citation | 131 P. 37,21 Wyo. 266 |
| Parties | HAMILTON v. DIEFENDERFER |
| Court | Wyoming Supreme Court |
Original Opinion of April 7, 1913, Reported at: 21 Wyo. 266.
Rehearing denied.
Metz & Sackett, for plaintiff in error.
(In support of petition for rehearing.) While commercial paper is presumed to have been given for a valuable consideration, it should not be permitted to prevail against the repeated admissions of payment by the holder. The statements, acts and conduct of Marie Schmitt at the time she indorsed the note and assigned the mortgage to Diefenderfer were competent only for the purpose of showing the circumstances surrounding the transaction on the question of the good faith of Diefenderfer; they were not competent to show title in the assignor or the validity of her claim. (1 Ency. Ev. 357, 383 note 62, 385; Nutter v. O'Donnell, 6 Colo. 253; Lewis v. Adams, 61 Ga. 559; Wilson v Patrick, 34 Ia. 362; Wescott v. Wescott, 75 Ia. 628, 35 N.W. 649; Royal v. Chandler, 79 Me. 265, 9 A. 615; Hunt v. Roylance, 11 Cush. 117; Comm. v. Goodwin, 14 Gray, 55; Blake v. Everett, 1 Ala. 248; Baxter v. Knowles, 12 Ala. 114; Pickering v. Reynolds, 119 Mass. 111; Hayden v. Stone, 121 Mass. 413; Turner v. Belden, 9 Mo. 787; Criddle v. Criddle, 21 Mo. 522; Clark v. Huffaker, 26 Mo. 264; Hurlburt v. Wheeler, 40 N.H. 73; Warring v. Warren, 1 John. 340; McPeake v. Hutchinson, 5 S. & R. 294; Patent v. Goldsborough, 9 S. & R. 47; Galbraith v. Green, 13 S. & R. 85; Crooks v. Bunn, 136 Pa. 368, 20 A. 529.) The note and mortgage were not transferred for value. (Alger v. Scott, 54 N.Y. 14; Williams v. Walker, 18 S.C. 577; Nelson v. Searle, 4 M. & M. 795; Tiedeman on Com. Paper, Sec. 157.) A "good" consideration is not alone sufficient for commercial paper. (Tiedeman, Sec. 159; 9 Cyc. 319.) A promise to do that which the promisor is already bound to do is no consideration. (9 Cyc. 347-351; Havana P. D. Co. v. Ashhurst, 148 Ill. 115, 35 N.E. 873; Beaver v. Fulp, 136 Ind. 595, 36 N.E. 418; Ellison v. Water Co., 12 Cal. 542; Johnson v. Seller, 33 Ala. 265; Merrick v. Giddings, 1 Mackey, 294; Schuler v. Myton, 48 Kan. 282, 29 P. 163; Putnam v. Woodbury, 68 Me. 58; Ecker v. McAllister, 54 Md. 362, 45 Md. 290; Gordon v. Gordon, 56 N.H. 170; Arend v. Smith, 151 N.Y. 502, 45 N.E. 872; Robinson v. Jewett, 116 N.Y. 40, 22 N.E. 224; Vanderbilt v. Schreyer, 91 N.Y. 392; L' Amoreux v. Gould, 7 N.Y. 349, 57 Am. Dec. 524; Alley v. Tuck, 8 App.Div. (N. Y.) 50, 40 N.Y.S. 433; Hanks v. Barron, 95 Tenn. 275, 32 S.W. 195; Kenighberger v. Windgate, 31 Tex. 42, 98 Am. Dec. 512; Davenport v. First. Con. Soc. 33 Wis. 387.)
ON PETITION FOR REHEARING.
A petition for a rehearing has been filed in each of these cases which, as stated in the former opinion, were submitted together, and had been consolidated in the District Court for the purpose of trial.
The only points discussed in the brief in support of the petition for rehearing are those mainly relied upon by the plaintiff in error at the time the cases were originally submitted, viz.: that the mortgage assigned to Diefenderfer had been paid, and should have been cancelled, while it remained in the hands of the assignor, Marie Schmitt, and that the assignment was without consideration. It is argued at some length that the statements made by Mrs. Schmitt to Hamilton and others before she assigned the mortgage, to the effect that it was paid, or she thought it was paid, and that she had intended to cancel it but had neglected to do so, were admissible in evidence, and a number of authorities are cited upon that proposition. The statements were admitted in evidence and, without deciding the question, it was assumed in the former opinion that the statements were admissible, notwithstanding that the note was indorsed and the mortgage securing it assigned to Diefenderfer before maturity, it being found unnecessary to determine whether or not the assignee was a bona fide holder. But counsel erroneously assumes that the statements so made were conclusive in favor of Hamilton and against Diefenderfer. They might have been conclusive in favor of one who had acted upon them, if the assignee was not a bona fide holder for value under circumstances protecting him against such admissions. Not having been acted upon by Hamilton, whose mortgage was taken long prior to the making of the statements, it would have been competent to prove the untruth of the statements, and to prove by Mrs. Schmitt that although she made the statements they were untrue in fact. The principle is stated in Greenleaf on Evidence:
(Redfield's Ed., Vol. 1, Sec. 191.) "Admissions, whether of law or of fact, which have been acted upon by others, are conclusive against the party making them, in all cases between him and the person whose conduct he has thus influenced." (Id., Sec. 207.) "On the other hand, verbal admissions which have not been acted upon, and which the party may controvert, without any breach of good faith or evasion of public justice, though admissible in evidence, are not held conclusive against him." It is said in Encyclopedia of Evidence (Vol. 1, 612-613) to be the general rule that admissions are not conclusive, but may be disproved by other evidence, the exceptions being judicial admissions and those which were intended to be and have been so acted upon as to give rise to the doctrine of estoppel.
The weight to be given to such admissions is to be determined by the jury, or by the court where the case is tried without a jury. Though verbally made, they may amount to satisfactory proof, but when unaccompanied by other facts or evidence are to be weighed with caution. The only evidence that the note and mortgage had been paid consisted of testimony showing the admissions aforesaid of Mrs. Schmitt. That testimony was not corroborated by any other fact in the case. On the contrary, all the other facts tended to show non-payment. The trial court was as well able as this court would be to determine the weight to be given to the alleged statements of Mrs. Schmitt, if not, indeed, in a better position to do so. Counsel complains of the statement in the opinion that the mortgage was assigned for a valuable consideration. That remark had reference only to the acts of Mrs. Schmitt seemingly in conflict with her alleged statements. The assignment executed by her recited that it was made in consideration of one dollar in hand paid "and other valuable considerations;" and it was shown that she was actually paid the sum of money stated at the time of executing the assignment. Nothing was said in the opinion concerning the adequacy or sufficiency of the consideration to constitute the assignee a bona fide holder, but the court refrained, as stated in the opinion, from deciding that question, deeming it unnecessary, for the reason that Hamilton was not in a position permitting him to question the consideration. Though the price be inadequate, and that fact may be considered in determining the question of good faith, it may nevertheless be a valuable consideration within the legal meaning of that term, as where money is paid, whether the amount be large or small.
Having concluded that the evidence was sufficient to sustain a finding that the mortgage and the note which it secured had not been paid, the consideration for the assignment became immaterial in this case, for it did not concern Hamilton, the junior mortgagee, whether there was any consideration for the assignment of the senior mortgage.
In Beach v. Derby, supra, the court say concerning the assignment of a chattel mortgage: In 27 Cyc., page 1284, it is said: "But the consideration of the transfer is in general no concern of the mortgagor, and he cannot be permitted to impeach it, nor can a junior mortgagee do so." In Jones on Mortgages (Vol. 1, Sec. 788) it is said: "Whether the assignee of a mortgage has paid value for it or not does not concern the mortgagor, except in reference to his interposing an equitable defense in way of payment or set-off." We quote the following from Am. & Eng. Ency. of Law (2nd Ed.), Vol. 2, page 1075): "In an action by the assignee of a chose in action against the debtor, it is in general no defense that the assignment was made without...
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