Hellstrom v. First Guaranty Bank, 4986.

• Decision Date: 26 May 1926
• Docket Number: No. 4986.,4986.
• Citation: 54 N.D. 166,209 N.W. 212
• Parties: HELLSTROM v. FIRST GUARANTY BANK.
• Court: North Dakota Supreme Court

54 N.D. 166

209 N.W. 212

HELLSTROM

v.FIRST GUARANTY BANK.

No. 4986.

Supreme Court of North Dakota.

Jan. 7, 1926.

Rehearing Denied May 26, 1926.

Syllabus by the Court.

The extent of the cross-examination of a witness, even as to matters purely defensive, rests in the sound discretion of the trial court, and the appellate court will not reverse the judgment, unless there has been a clear abuse of such discretion, especially where the cross-examination is upon facts competent to be proved under the issues in the case, and where the questions are relevant to the general subject under litigation.

A managing officer of a corporation, particularly charged with handling transactions making it necessary for him to judge values of farm property, may testify to the market value of land owned by the corporation, providing he shows the qualifications required of an ordinary owner of such property.

Appeal from District Court, Burleigh County; J. A. Coffey, Judge.

Action by F. O. Hellstrom against the First Guaranty Bank of Bismarck. From a judgment for defendant, plaintiff appeals. Affirmed.

See, also, 196 N. W. 503.Knauf & Knauf, of Jamestown, and F. O. Hellstrom, of Bismarck, for appellant.

E. T. Burke and S. L. Nuchols, both of Bismarck, for respondent.

McKENNA, District Judge.

The plaintiff seeks to recover from the defendant damages for a breach of an alleged contract to effect redemption on plaintiff's behalf of his land from a mortgage foreclosure sale. The jury returned a verdict in favor of the defendant. The plaintiff moved the court below for a new trial, which was denied. From a judgment of dismissal, the plaintiff has appealed.

From the record it appears that in the month of December, 1919, the plaintiff, F. O. Hellstrom, was the owner of a tract of land comprising some 154 acres, described as the southwest quarter of the northwest quarter, and lot 4 in section 4, and the southeast quarter of the northeast quarter, and lot 1 in section 5, township 147, range 39, west of the Fifth principal meridian, in Polk county, Minn., situated some six miles from the city of Fosston. On December 10, 1919, the plaintiff executed to the defendant bank a second mortgage upon this property for $3,000; a first mortgage of $1,500 upon the premises being held by the Capital Trust & Savings Bank of St. Paul. In June, 1921, plaintiff not being able to pay the first mortgage, the same was foreclosed, and a sheriff's certificate of sale issued; the redemption period expiring about the 24th of June, 1922. Partial payments had been made by the plaintiff on the $3,000 mortgage to the defendant bank, but in June, 1922, there remained an unpaid balance of about $1,100. The plaintiff failed to redeem from the foreclosure made by the Capital Trust & Savings Bank of St. Paul, and in June, 1922, the defendant, in order to protect its second mortgage, effected a redemption, and secured a sheriff's deed to the property.

The plaintiff in his complaint alleged, and also contended at the trial, that in the month of May, 1922, he entered into an oral agreement with the defendant bank, through its president, Mr. F. A. Lahr, whereby it was covenanted and agreed by the defendant that the defendant would redeem the premises from the foreclosure sale under its second mortgage, and hold the title in trust for the benefit of the plaintiff, and that the defendant would negotiate and accept from the plaintiff as redemption payment a first mortgage loan in the sum of $1,800, and in addition thereto a second mortgage from the plaintiff for the balance remaining unpaid on the first and second mortgages; that the plaintiff in good faith relied upon such agreement, and took no further steps to effect a redemption of the property; that on the 29th day of June, 1922, Mr. E. T. Burke, acting as attorney for the defendant bank, notified plaintiff that the mortgages and notes under this agreement were ready to be executed, and asked him to go to the bank and sign the same; that the plaintiff went to the bank and looked the papers over; that they appeared to be two mortgages and notes ready for his signature; that Mr. E. V. Lahr, the cashier of the bank, and attorney E. T. Burke were present. His testimony as to what occurred at this meeting is as follows:

“I said to Mr. Lahr: ‘These papers seem to be all right as far as I can see, but I have another proposition which I will give you which you can consider. If you want the money instead of these notes and mortgages, I can pay you off in full the entire amount.’ ‘Well, of course,’ he says, ‘we would rather have the money.’ He says, ‘How soon are you going to get that money?’ I said, ‘That money can be had in two hours and a half.’ And he said, ‘The sooner the better, and the better we will be satisfied.’ So I went ahead and made my arrangements with Mr. Wilson. He was cashier of the Merchants' National Bank of Mandan. I called him over the long distance 'phone, told him that I could make that arrangement, and, if the bank still was going to go through with the deal with me that we had talked, to come over right away, that we had to have the money right away, and be able to settle with them in order to get the redemption.”

The plaintiff claims that Mr. Wilson came over with a cashier's check; that he tendered the amount of money necessary to redeem to E. T. Burke, attorney for the defendant bank, and that it was refused; that the bank was closed, and Mr. Lahr not to be found, and that the defendant, instead of complying with the terms of this agreement, took title to itself, and refused to permit the plaintiff to redeem; that the premises were reasonably worth, at the time of the expiration of the period of redemption, $11,200; and that the plaintiff has been damaged by reason of the breach of such contract in the sum of $8,428, less the sum of $2,500, the amount due upon the foreclosure sale and defendant's second mortgage.

The defendant bank, through its officers, in its answer, and at the trial, specifically and positively denied the making of any such agreement, but admitted that, after the period of redemption had expired, and about the 29th of June, 1922, the bank agreed to deed the land to the plaintiff upon his paying the full amount due on the first and second mortgages, and upon his agreeing to dismiss certain litigation then pending between the plaintiff and the defendant in the district court of Burleigh county; that the plaintiff refused to accept this proposition; and that later, and in the month of August, 1922, they sold the land to the Merchants' National Bank of Mandan for less than the First Guaranty Bank had invested in the first and second mortgages.

The plaintiff has assigned sixteen specifications of error. They all relate to the admission or rejection of testimony.

[1] The first six assignments may be considered together, as they relate entirely to the cross-examination of the witness George F. Wilson, the cashier of the Merchants' Nation al Bank of Mandan. Mr. Wilson was called as a witness by the plaintiff for the purpose of showing, apparently, that Mr. Wilson had come to Bismarck from Mandan on the evening of June 29, 1922, for the express purpose of paying to the defendant bank the amount of money necessary to effect a redemption of the mortgages held by the defendant. On cross-examination this witness was permitted to testify over the objection of the plaintiff, that on the 29th of June, 1922, the plaintiff, Hellstrom, was indebted to the Merchants' National Bank of Mandan in the sum of $5,000, and that the Mandan Bank was not so much interested in advancing money to Mr. Hellstrom to effect a redemption as it was to secure whatever equity there might be in the Polk county land as additional security to its own claims against Mr. Hellstrom, and that later, and in the month of August, 1922, the bank actually did purchase this land from the First Guaranty Bank for a consideration of $3,400, clear of incumbrance.

The plaintiff strenuously contends that this was prejudicial error; that this cross-examination went far beyond the scope of the examination in chief, went into matters that were entirely irrelevant to any question asked the witness Wilson on direct examination; and that such evidence adduced on cross-examination could not but prejudice the jury against the plaintiff, for the reason that the jury might naturally conclude that, the defendant bank not having made any profit on the transaction, therefore it should not be mulcted in damages.

We have analyzed the testimony of Mr. Wilson very carefully. Just prior to calling Mr. Wilson to the stand, the plaintiff had called for cross-examination under the statute Mr. E. V. Lahr, cashier of the defendant bank, and had examined him minutely as to all transactions between the bank and Mr. Hellstrom in reference to the $3,000 mortgage on the Polk county land and the redemption of the same, and also asked the witness Lahr these questions:

“Q. Your bank came into possession of the title to this land, did they not? A. Yes, sir.

Q. Afterwards you sold that land, did you not? A. Yes, sir.

Q. And disposed of it? A. Yes, sir.”

The witness Wilson testified, in substance, on direct examination that he was cashier of the Merchants' National Bank of Mandan; that on the 29th of June, 1922, and prior thereto, he had some business dealings with the plaintiff, Hellstrom, in reference to the land involved in this litigation, and especially with reference to giving him, or securing for him, the money with which to redeem this land from the different mortgages upon it; that Mr. Hellstrom had come to him, and said that he was able to do business with the First Guaranty Bank, and wanted to know if the Mandan Bank was ready to furnish the money; that the witness told him that they would; that he had had some idea of what was against the land, and that he told him he would furnish enough to make the redemption or get the land; that he came over...