Jones v. Matthieson

• Decision Date: 27 December 1881
• Citation: 11 N.W. 109,2 Dakota 523
• Parties: Jones v. Matthieson.
• Court: North Dakota Supreme Court

11 N.W. 109

2 Dakota 523

Jones v. Matthieson.

Supreme Court of Territory of Dakota

December 27, 1881

Appeal from Lawrence county.

Carson & Thomas, for appellant. G. B. Scofield, for respondent.

MOODY J.

This action is for an alleged balance of $1,308, interest due upon a promissory note given at Salt Lake City, Utah territory January 19, 1875, by Matthieson to Jones. The defendant Matthieson, in his answer admits the execution and delivery of the note, alleges payment, and also an agreement to leave the note in plaintiff's possession to enable him to collect an insurance policy assigned by defendant to plaintiff upon certain leasehold property of defendant situated in Salt Lake City, theretofore destroyed by fire. The action was tried to a jury, a verdict and judgment were rendered and entered for defendant, and plaintiff appeals.

Upon the trial the court, at the request of defendant, gave the following instruction: "If the jury believe from the evidence that on or about the sixteenth day of November 1875, the plaintiff received and accepted from the defendant a policy of insurance from the Globe Insurance Company, and that it was there transferred to him by defendant in payment for the balance due upon note sued upon in this action, due from the defendant to the plaintiff, in full satisfaction thereof, and delivered the note to defendant at the time the agreement was made, your verdict should be for defendant."

The giving of this instruction is alleged by appellant to be error, because it assumes, contrary to the fact, that there was evidence upon which the jury might properly find that "the plaintiff received and accepted from the defendant a policy of insurance from the Globe Insurance Company, and that it was transferred to plaintiff by defendant in payment of the balance due on the note," and was, therefore, calculated to mislead the jury. All of the evidence adduced upon the trial is set out in the bill of exceptions at length, and consists, beside the note in suit, of the testimony of the plaintiff and defendant only. We have carefully examined the evidence, and find nothing which tends to prove that the plaintiff received and accepted from the defendant a policy of insurance from the Globe Insurance Company, or that one was transferred to plaintiff by defendant in payment for the balance due on this note, or that tends in any manner to support the theory embodied in the instruction.

The undisputed facts, clearly established, are that as the time the note was given the defendant, Matthieson, transferred to the plaintiff, Jones, a leasehold interest in certain real property in Salt Lake City to secure the payment of the note. At the same time, as further security, policies of insurance among them this one in the Globe, were taken out upon the property, indorsed, as is usual in such cases, "Loss, if any, payable to T. R. Jones, as his claim shall appear at that date;" and were delivered to plaintiff, who always retained the possesion of the policy in the Globe. On the thirtieth or thirty-first day of October,...