Harrison v. State Banking & Trust Co.

• Decision Date: 12 February 1902
• Citation: 15 S.D. 304,89 N.W. 477
• Court: South Dakota Supreme Court
• Parties: CHARLES M. HARRISON, Plaintiff and respondent, v. STATE BANKING & TRUST COMPANY, a Corporation, Defendant and appellant.

15 S.D. 304

89 N.W. 477

CHARLES M. HARRISON, Plaintiff and respondent,

v.

STATE BANKING & TRUST COMPANY, a Corporation, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge Affirmed Joe Kirby, Sioux Falls, SD Attorneys for appellant. Aikens & Judge, Sioux Falls, SD Attorneys for respondent. Opinion filed February 12, 1902

CORSON, J.

This is an action by the plaintiff to recover of the defendant the sum of $350, alleged to have been received by it for the use and benefit of the plaintiff. The defendant admitted the allegation in the Complaint as to its incorporation, and denied each and all of the other allegations therein. The case was tried to a jury, and a verdict directed in favor of the plaintiff, and from a judgment rendered thereon the defendant has appealed.

The defendant seeks a reversal of the judgment on the ground that the court erred in admitting evidence on the part of the plaintiff over ‘the objections and exceptions of the appellant and in excluding certain evidence on the part of the appellant. The appellant also seeks a reversal of the judgment on the ground that there was evidence to support the same. To properly understand the case it will be necessary to state the plaintiff’s theory, which is sustained by the evidence as admitted on the trial: On March 1, 1895, Anna R. Harrison and Charles M. Harrison executed a certain mortgage on property deeded to Anna R. Harrison to secure the payment of certain promissory notes executed to Agnes C. Buchanan as payee, two of the notes being for the sum of $300 each. These notes came into the possession of the defendant bank, and in January, 1896, an aotion was commenced thereon by the bank, resulting in a judgment in its favor against the plaintiff and Anna R. Harrison for the sum of $641.75, upon which an execution was issued and returned unsatisfied. Subsequently, in June, 1896, F. H. Hollister, who was at that time, and for many years prior thereto had been, connected with the bank; foreclosed the mortgage so executed by Anna R. Harrison and the plaintiff herein for the amount due upon said mortgage, including the two notes upon which the said bank had recovered judgment; and the mortgaged property was bid in by the said Hollister for the sum of $950, leaving a balance due on the notes secured by said mortgage of $391.85, as shown by the affidavit of the sheriff of Minnehaha county who made the sale: Subsequently, the plaintiff paid the amount of the judgment recovered against him and his wife on the two notes, less $105 discount. At the time of the payment the bank credited Harrison’s account with the sum of $391.85, and passed the balance of the sum so paid on said judgment to its profit and loss account. Harrison subsequently discovered that by reason of the sale of the mortgaged premises in 1896 and the payment of the judgment in 1899 the bank had been overpaid to the amount of about $268, which, with the interest, amounted, at the time of the trial, to about $306, and for which a verdict was directed by the court in this action. The contention of the appellant is that there was no evidence tending to prove that Hollister, in foreclosing the Harrison mortgage, was acting for the bank, and that, therefore, the court committed error in admitting evidence showing the sale of the premises by Hollister under the mortgage, the amount for which the premises were sold, and the amount of the deficiency remaining unpaid. At the trial the plaintiff introduced in evidence the judgment roll in the case of the bank against the plaintiff and his wife, wherein the bank had recovered judgment against them upon two $300 notes, and proved that the judgment so recovered had been paid, less $105 discount, to the bank. This evidence was objected to, but there was no merit in the objection. The attorney for the bank was then called as a witness on the part of the plaintiff, and testified that he was the attorney for F. H. Hollister, the assignee of a mortgage executed by Anna R. Harrison and Charles M. Harrison to Agnes Buchanan, which mortgage was foreclosed by advertisement; that the notes on which the judgment was recovered by the bank were a part of the debt secured by this mortgage. The witness further testified under...