Owen v. Evans

• Decision Date: 01 October 1892
• Citation: 31 N.E. 999,134 N.Y. 514
• Parties: OWEN v. EVANS.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 514

31 N.E. 999

OWEN

v.EVANS.

Court of Appeals of New York,

Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, fourth department.

Action by James P. Owen against Thomas C. Evans. From an order of the general term, (11 N. Y. Supp. 946,) reversing a judgment entered on a verdict rendered for plaintiff by direction of the trial court, the latter appeals. Affirmed.

Thomas S. Jones, for appellant.

M. H. Powers, for respondent.

The other facts fully appear in the following statement by VANN, J.:

This action was commenced May 20, 1889, upon a written instrument dated November 25, 1872, whereby the defendant guarantied the payment of a note and mortgage on that day assigned by him to one John Owen, the assignor of the plaintiff. On the 20th of December, 1871, at Independence, Kan., one Sarah A. Evans executed and delivered to the defendant her promissory note, dated at the time and place aforesaid, whereby she promised to pay to his order the sum of $750, as follows: $200 each year, commencing March 1, 1873, until the entire amount was paid, with annual interest at the rate of 10 per cent., ‘payable at the house of George H. Evans, Cherry township, Montgomery county, Kan.’ At the same time she executed and delivered to the defendant a mortgage upon 160 acres of land in said county and state as collateral security to said note. November 29, 1872, the defendant, by an instrument under seal, assigned said note and mortgage to one John Owen, and guarantied the payment thereof, with interest at the rate mentioned. April 12, 1889, John Owen purported to assign the mortgage to the plaintiff, ‘together with the bond accompanying said mortgage, and therein referred to, and all sums of money due and to grow due thereon.h The answer put at issue the alleged transfer to the plaintiff, and set forth, among other defenses, that in 1878 John Owen, for a valuable consideration, assigned the note and mortgage to one George H. Evans, the husband of the maker, and that he ‘still is the owner and holder’ thereof.

VANN, J., ( after stating the facts.)

At the close of the evidence the defendant asked leave ‘to go to the jury upon the question of whether or not there was a sale of the mortgage and note by John Owen to George H. Evans,’ as well as ‘upon all the questions of fact in the case;’ but the learned trial judge denied the application, and directed a verdict in favor of the plaintiff for the sum of $1,276.23, the entire amount claimed. The general term reversed the judgment entered on the verdict upon the ground that the question of ownership of the cause of action should have been submitted to the jury. The evidence addressed to that issue consisted mainly of letters written by John Owen, residing in Jefferson couty, N. Y., to George H. Evans, residing in Montgomery county, Kan., the answers of Mr. Evans, with a single exception, not having been produced. The following extracts embrace the material parts of the correspondence, so far as it was read in evidence: ‘July 29, [1877.] I received a letter from Thomas, saying that you wanted to buy the mortgage of mine. To talk business, you can have it for $1,000. That is throwing off $150. * * * Now, I would as leave take $1,000 as to come out there, for it would cost me a good dela to come out there; but if you do not see fit to buy the mortgage, I shall be out there this fall, and shall be prepared to do something in regard to the mortgage on the property when I see the land.’ ‘September 3, [1877.] I received your letter, and in reply to it I would say that I would take for the mortgage $900, if you want it; if not, I will be out there soon.’ ‘November 29, 1877. I received your letter, speaking of my brother wanting to come out there. * * * Now, I want to know whether you want to pay me $900, or have me send my brother out there, for I am going to straighten it up some way soon.’ ‘January 27, 1878. I have concluded to take you to your offer of $850; one hundred cash, $750 March next. I had rather do that than to come out there, for I am all alone here this winter. I spoke to my brother of coming, but he is sick, and cannot come at present.’ ‘February 17, 1878. I will let you have the mortgage, if you pay mefor it, assoon as you agree to pay me, for $850. I always do as I agree. All well.’ ‘June 9, 1878. I would like the balance of the money as soon as I can get it. Received of George Evans four hundred and twenty-five dollars to apply on mortgage, May 10, 1878. [Signed] JOHN OWEN. I received the draft about that time, I think.’ The following cashiers' checks, drawn on a bank in Independence, Kan., were produced by the defendant, and read in evidence: (1) April 20, 1878, for $425, payable to the order of C. H. Evans and indorsed by him as follows: ‘Pay John Owen or order, being for one half of amount due him on S. A. Evans' mortgage.’ It was also indorsed by John Owen. (2) July 22, 1882, for $400, payable to the order of John Owen, and indorsed by him. (3) October 28, 1882, for $154.50, payable to the order of George H. Evans, and by him indorsed over to John Owen, ‘being in full for amount due him on the S. A. Evans mortgage.’ The last check was returned to Mr. Evans by John Owen in a letter written in his behalf by his attorney, Mr Taylor, under the date of November 15, 1882, in which he said: ‘Yours of a recent date, with draft on New York...