Pioneer Credit Co. v. Latendresse, 9578

• Decision Date: 02 August 1979
• Docket Number: No. 9578,9578
• Citation: 286 N.W.2d 445
• Parties: PIONEER CREDIT CO., Towner, North Dakota, Plaintiff and Appellee, v. Orville LATENDRESSE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 445

286 N.W.2d 445

PIONEER CREDIT CO., Towner, North Dakota, Plaintiff and Appellee, v. Orville LATENDRESSE, Defendant and Appellant.

Civ. No. 9578.

Supreme Court of North Dakota.

Aug. 2, 1979.

Rehearing Denied Aug. 22, 1979.

Pringle & Herigstad, Minot, for plaintiff and appellee; argued by Richard P. Olson, Minot.

Orville Latendresse, defendant and appellant, pro se.

SAND, Justice.

Pioneer Credit Company filed a complaint against Orville Latendresse for payment of the balance due on a $3,000.00 note dated 31 December 1975. Latendresse counterclaimed for $508,875.00, plus interest, alleging the plaintiff failed to extend the full amount of credit promised him in connection with another transaction in 1963. The district court granted motions in favor of the plaintiff on both the complaint and the counterclaim. Latendresse appealed.

On 22 November 1963, Latendresse executed a real property mortgage deed securing payment of an $8,269.80 note due 22 November 1964. On the same day Latendresse executed a chattel mortgage securing payment of an $8,269.80 note dated 22 November 1963 and due 22 November 1964. The chattel mortgage also stated it secured additional advances not to exceed $8,000.00. Attached to the chattel mortgage, which was introduced as an exhibit, was a copy of a deposit receipt dated 22 November 1963 showing an $8,269.80 deposit into Latendresse's account at the Pioneer State Bank, less $100.00 deducted for the cost of an abstract and attorney fees apparently rendered in connection with the real estate mortgage. Latendresse's position at trial was that when the two 1963 mortgages were executed he was promised $8,269.80 under each, plus $3,000.00 for additional future advances under the chattel mortgage, making a total promise to loan him the sum of $19,539.60. It appears undisputed that Latendresse received, as a result of the 22 November 1963 transactions, only the $8,269.80 evidenced by the 22 November 1963 deposit receipt.

On 31 December 1975, Latendresse executed a $3,000.00 note, due 1 December 1976, in favor of Pioneer Credit Company. After the note became overdue, Pioneer Credit, on 11 August 1978, filed a complaint against Latendresse seeking collection of the $2,084.26 due on the principal balance, plus $535.92 in interest. In his answer, Latendresse stated the bank had written the note off. In addition, he counterclaimed for damages he suffered as the result of plaintiff's failure to extend to him credit in the full amount of both mortgages executed in 1963. He calculated those damages at $508,875, plus interest at an annual rate of 9 1/2%. Pioneer Credit filed a reply to the counterclaim, along with a motion for summary judgment on both its claim and Latendresse's counterclaim.

A hearing was held in district court on 25 August 1978 at which Latendresse was allowed to testify. During the hearing the district court granted Pioneer Credit's motion for summary judgment on its claim after explaining to Latendresse that the mere fact a lending institution writes off a loan on its own books does not cancel the debtor's obligation on the loan. At the conclusion of the hearing, the trial court provided both parties with time to present briefs on the issue of Latendresse's counterclaim. On 12 October 1978, the district court issued an order granting summary judgment in favor of Pioneer Credit on the counterclaim. Judgment was entered accordingly and Latendresse appealed.

In his notice of appeal, Latendresse stated he was appealing both the granting of summary judgment in favor of Pioneer Credit's claim as well as the dismissal of his counterclaim. Neither in his brief nor on oral argument, however, did Latendresse raise an issue regarding error in granting summary judgment in favor of the plaintiff's claim against him. Consequently, we conclude Latendresse has abandoned his appeal as regards that claim and we now examine the issues raised regarding his counterclaim.

As stated previously, Latendresse argued that, in 1963, the plaintiff promised to loan him $8,269.80 for each, the chattel mortgage and the real estate mortgage in addition to a future advance of $3,000 on the chattel mortgage. He asserted his later financial difficulties were caused by his receiving only $8,269.80 rather than the full $19,539.60 he was allegedly promised.

In its order granting summary judgment, the trial court concluded Latendresse's counterclaim was barred by the statute of limitations. In reaching its conclusion, the trial court relied on § 28-01-16, NDCC, which states in part that an action on "a contract, obligation, or liability, express or implied," must be commenced within six years after the cause of action has accrued. Latendresse argued his partial payments on the note that was secured by the mortgages, plus his execution of various renewal notes, acted to toll the statute of limitations on the mortgages and correspondingly the plaintiff's alleged promise to pay him the additional $8,269.80, plus the $3,000 future advance. As authority for his argument, Latendresse cited Hansen v. Branner, 52 N.D. 892, 204 N.W. 856, 41 A.L.R. 814 (1925); Magnuson v. Breher, 69 N.D. 197, 284 N.W. 853 (1939); and Hoffman v. Ness, 71 N.D. 283, 300 N.W. 428 (1941).

In Hansen v. Branner, supra, this court held that where partial payment or acknowledgment of a debt secured by a real estate mortgage tolled the statute of limitations on the debt, it also extended the right of action on the mortgage. See also, Magnuson v. Breher, supra, 69 N.D. 197, 284 N.W. at 855.

In Hoffman v. Ness, supra, we said that execution of a renewal note constituted written acknowledgment of the prior debt as to extend the right of action on the debt.

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