Nat'l Citizens' Bank of Mankato v. Bowen

• Decision Date: 14 January 1910
• Citation: 109 Minn. 473,124 N.W. 241
• Parties: NATIONAL CITIZENS' BANK OF MANKATO v. BOWEN et al.
• Court: Minnesota Supreme Court

109 Minn. 473

124 N.W. 241

NATIONAL CITIZENS' BANK OF MANKATO

v.BOWEN et al.

Supreme Court of Minnesota.

Jan. 14, 1910.

Appeal from District Court, Blue Earth County; A. R. Pfau, Judge.

Action by the National Citizens' Bank of Mankato against D. T. Bowen and another. A verdict was returned for defendant Bowen, whereupon plaintiff moved for judgment notwithstanding the verdict or for a new trial. The motion for judgment was denied, but the motion for a new trial was granted, and plaintiff and defendant Bowen appeal. Affirmed.

(Syllabus by the Court.)

John H. Eckhardt and S. B. Wilson, for plaintiff.

A. R. Pfau, Jr., and C. J. Laurisch, for defendant Bowen.

BROWN, J.

Action upon the joint promissory note of defendants Babcock and Bowen. Defendant Bowen alone answered, setting up the defense, among other things, that he signed the note as an accommodation maker at the instance and request of the payee therein, plaintiff in this action, without consideration, to enable plaintiff to make use of the same as a bankable asset, and for no other purpose whatever. A verdict was returned for defendant on the trial below sustaining this defense. Whereupon plaintiff moved for judgment notwithstanding the verdict or for a new trial. The trial court denied the motion for judgment, but granted a new trial. Both parties appealed. Defendant's appeal will be first disposed of.

1. Plaintiff's motion for a new trial was based upon the grounds (1) of errors in law occurring at the trial and duly excepted to, (2) that the verdict was not justified by the evidence, and (3) misconduct of defendant's counsel in his argument before the jury. The court below assigned no reason for granting the new trial, either in the order or a memorandum, and, though the verdict seems clearly against the weight of the evidence, we cannot assume that the court granted the new trial upon that ground. Fitger v. Guthrie, 89 Minn. 330, 94 N. W. 888;Berg v. Olson, 88 Minn. 392, 93 N. W. 309. We must therefore took to the other grounds of the motion to ascertain whether the record will sustain the order for the reasons therein assigned. We discover no reversible errors in law, and the only remaining ground of the motion is misconduct of counsel. As no errors in law are urged in support of the order, and as none appear from the record, we must assume that the trial court granted the motion upon this ground of misconduct, and we dispose of defendant's appeal accordingly. Upon this question it is thoroughly settled that a new trial upon the ground stated is addressed to the sound discretion of the trial court, to be interfered with only where the discretion is abused. Jung v. Brewing Co., 95 Minn. 367, 104 N. W. 233. While, as in the case just cited, we discover no sufficient reason for a severe criticism or censure of counsel in the remarks made by him in the argument before the jury, the question whether what was said was prejudicial was peculiarly for the trial court to determine, and, following that decision, we hold the order in the case at bar not an abuse of discretion.

2. The principal contention of plaintiff on its appeal is that as practically all the testimony offered by defendant to establish the defense that the note was given as an accommodation to the bank was inadmissible, because its effect was to vary and contradict by parol the terms of the note, and also the terms of the contract between Bowen and Babcock, by which Babcock turned over to Bowen certain security to indemnify him from loss possible to follow, the court should have ignored it and granted plaintiff's motion for an instructed verdict. We do not concur in this view of the case. We, of course, are not to be understood as questioning the elementary proposition that written contracts cannot be varied or contradicted by parol evidence; but that rule has no application to a question of the character of that here presented, viz., whether a promissory note was made and delivered to the payee as an accommodation to him, and not as a valid, binding obligation. The defense that a promissory note was made as an accommodation to the payee is inseparably connected with the absence or want of a consideration. If there was a valuable consideration moving between the maker and the payee, the claim of accommodation could have no possible foundation to rest upon. So that testimony to the effect that it was given as an accommodation does not, strictly speaking, contradict the terms of the note, within the rule excluding parol evidence on that subject, but only establishes the fact, always admissible between the parties, that the note was without consideration. And, though there may be some conflict upon the question in the adjudicated cases, the prevailing rule admits evidence for this purpose. 1 Ency. L. & P. 494, and cases cited; Pray v. Rhodes, ...