Longfellow v. McGregor

• Court: Minnesota Supreme Court
• Writing for the Court: *T, C. J.
• Citation: Longfellow v. McGregor, 61 Minn. 494, 63 N. W. 1032 (Minn. 1895)
• Decision Date: 28 June 1895
• Docket Number: 9411--(169)
• Parties: LEVI LONGFELLOW v. WILLIAM M. McGREGOR and Others

63 N.W. 1032

61 Minn. 494

LEVI LONGFELLOW v. WILLIAM M. McGREGOR and Others

Nos. 9411--(169)

Supreme Court of Minnesota

June 28, 1895

Appeal by one of defendants from an order of the district court for Hennepin county, Hicks, J., denying a motion for a new trial. Modified.

Welch & Hayne, Victor J. Welch, E. S. Gaylord, and C. H. Howard, for appellant.

F. W Reed, for respondent.

OPINION

*T, C. J. ^[2]

The defendant William McGregor, on August 1, 1890, borrowed of the firm of Longfellow & Russell, which was composed of the plaintiff and Edward Russell, the sum of $ 2,200, and executed a note and mortgage on real estate to Russell to secure such loan, and, as further security, effected fire insurance on the house upon the mortgaged premises for $ 2,500, payable in case of loss to Russell, as mortgagee.

In the month of October, 1890, the house was destroyed by fire, and the loss was adjusted at $ 1,175.14, payable in 60 days, and a draft for the then present worth of this amount, payable to the order of Edward Russell and William McGregor, was made and delivered by the insurance company to Russell in full payment of the loss. For the purpose of securing the payment of this insurance money to William McGregor, a bond was executed and delivered by William McGregor, as principal, and his co-defendants, as sureties, to Russell, who, in consideration thereof, delivered, properly indorsed, the draft to William McGregor, as the plaintiff claims, but, as the defendants claim, to George McGregor. Afterwards, and on November 8, 1890, Russell duly assigned the note and mortgage to plaintiff, by an assignment absolute in its terms, but in fact the note and mortgage were then, and thereafter continued to be, the property of the firm of Longfellow & Russell, until Russell's death, on December 19, 1891. The bond was in the penal sum of $ 2,000, and, as plaintiff claims, was upon the condition that William McGregor should rebuild the house on the mortgaged premises within 90 days from the date of the bond.

The house was never rebuilt, and the plaintiff brought this action on the bond to recover damages for its breach. The case was in this court on a former appeal. See 56 Minn. 312 57 N.W. 926. Upon the second trial in the district court the plaintiff had a verdict for the full amount of the penal sum of the bond, by direction of the court, and from an order denying his motion for a new trial the defendant Gaylord appeals.

1. The appellant claims that the bond, by reason of omissions in its condition, is a nullity, and further, conceding that it is valid, that the plaintiff cannot maintain this action on the bond because no one but Russell, the obligee in the bond, or his legal representatives, can maintain an action on it. The condition of the bond will be found in the opinion of this court on the former appeal. The court construed the bond in connection with the facts and circumstances under which it was executed and delivered, and held that it was valid, and that it was intended to secure the rebuilding of the house by William McGregor, in consideration of the insurance money being paid to him. The evidence on the trial now under review was sufficient, in connection with the bond, to show such agreement to rebuild, and renders the condition of the bond certain. The objection that the plaintiff cannot maintain an action on the bond because Russell was the obligee, and the plaintiff is not his representative, was also decided adversely to the appellant on the former appeal. The plaintiff is the assignee of Russell, and as such holds the legal title to the debt and mortgage, and may maintain an action in his own name to enforce payment of the debt, or any securities therefor, although he holds such title for himself, and also as trustee for others. Anderson v Reardon, 46 Minn. 185, 48 N.W. 777; Triggs v Jones, 46 Minn. 277, 48 N.W. 1113. Before such assignment, Russell held the legal title to the debt and the bond, and the fact that he held them in trust for the firm in no manner affected the liability of the sureties on the bond to him and his assigns. The bond was a part of the security for the payment of the mortgage debt, and passed to the plaintiff by the assignment to him. Such change in the ownership of the bond did not affect the contract of the sureties, so...