McMahon v. Plummer

• Citation: 50 N.W. 480,6 Dak. 42
• Parties: McMahon et al. v. Plummer et al.
• Decision Date: 28 February 1888
• Court: South Dakota Supreme Court

50 N.W. 480

6 Dak. 42

McMahon et al.

v.Plummer et al.

Supreme Court of the Territory of Dakota.

Feb. Term, 1888.

Appeal from district court, Cass county; W. B. McConnell, Judge.

Action by Edward J. McMahon and Charles M. MacLaren against A. L. Plummer and A. L. Hanson. Judgment for plaintiffs. Defendants appeal. Affirmed.

The complaint alleged that defendants, for a good and valuable consideration, on November 14, 1885, drew their check, payable to plaintiffs' order, and delivered the same to plaintiffs; that said check was presented for payment, and payment refused, and the check protested, and that the same was still unpaid and due from defendants to plaintiffs. Plaintiffs demanded judgment for the amount of the check, costs of protest, and costs. Defendants answered, admitting the execution and delivery of the check, but denied that it was executed and delivered for a good and valuable consideration. The answer then alleged that on October 29, 1885, one Black, being indebted to defendants, executed to them a chattel mortgage on his stock of goods to secure the same; that on November 8, 1885, plaintiffs wrongfully took and removed said goods, and refused to deliver them to defendants on demand, unless defendants should execute and deliver to them the check in suit; that plaintiffs falsely represented that they had taken possession of and removed the goods because they had a lien thereon prior to defendants' lien under the mortgage; and that the check was given for the amount of this pretended lien. The answer further alleged that plaintiffs, at the time the check was given, falsely represented that they had removed the goods carefully and without injury thereto, and that they were then carefully stored, and in as good condition as when they had taken possession of them; that the check was given in reliance on these representations of plaintiffs, whereas they were false, and made with intent to defraud defendants and extort from them the amount of said check. Defendants demanded judgment by way of counter-claim for the amount of damages sustained by them by reason of injury to the goods while in plaintiffs' possession. Plaintiffs replied, alleging that the chattel mortgage from Black to defendants was fraudulent as to Black's creditors, among whom were Allen, Moon & Co.; that said plaintiffs were engaged in the law and collection business, and held Allen, Moon & Co.'s claim against Black for collection; that on or about November...