Mooney v. Williams
| Decision Date | 24 May 1900 |
| Citation | 83 N.W. 237,9 N.D. 329 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Fisk, J.
Action by W. J. Mooney and L. S. Champaigne against Owen Williams. Judgment for plaintiffs. Defendant appeals.
Affirmed.
D. A Lindsey, for appellant.
John E Greene and Joseph Cleary, for respondents.
This case was commenced in the District Court of Grand Forks county to recover the sum of $ 30 and interest as due and unpaid upon a certain promissory note executed and delivered by the defendant to the Realty, Revenue Guaranty Company, a Minnesota corporation, which note the complaint alleges was indorsed to the plaintiffs for a valuable consideration before maturity, in good faith, and in the ordinary course of business, and is wholly unpaid. The case was submitted to the court without a jury, and without other evidence than that furnished by a written stipulation of facts signed by counsel, to which reference will hereafter be made. The trial court made the written stipulation of facts its findings of fact, and as a conclusion of law therefrom found that plaintiffs were entitled to judgment as prayed for in their complaint, and judgment was accordingly entered in their favor. An appeal has been perfected to this court from the judgment.
The only error assigned in appellant's brief is that "the court erred in finding as a conclusion of law that the plaintiffs were entitled to judgment for the amount of the note sued for in this action. This assignment is clearly without merit. The note in suit is negotiable in form. It is true the stipulated facts show a complete defense to the note as between the original parties, for it is conceded therein that the only consideration which the maker of the note received was a certain "option sale contract" executed and delivered to him by the Realty Revenue Guaranty Company, the payee, a copy of such contract being attached to and made a part of the findings. This contract is the same as that before us in State v. Hogan, 8 N.D. 301, 78 N.W. 1051, and was issued by the same corporation. In that case we held that it was a contract of insurance. It is stipulated that the Realty, Revenue Guaranty Company had not complied with the laws of the state prescribing the conditions upon which foreign insurance companies may do business in this state when this contract was issued or at all. Under these circumstances the contract, which furnishes the sole consideration for the note in suit, was void at its very inception, so far as the corporation is concerned, under the express provisions of section 3265, Rev. Codes. It is patent, then, that as against the original payee the maker of the note would have a complete defense, both for want of consideration and fraud. But the effect of the stipulation as to fraud and want of...
To continue reading
Request your trial