Sec. State Bank of Crosby v. Peterson
| Decision Date | 13 March 1923 |
| Citation | 192 N.W. 491,49 N.D. 585 |
| Parties | SECURITY STATE BANK OF CROSBY v. PETERSON. |
| Court | North Dakota Supreme Court |
Where an answer alleges that defendant received no consideration whatsoever for a promissory note, it is held, upon demurrer, to sufficiently aver an ultimate fact presenting an issue upon consideration.
Where an answer has alleged facts concerning fraud and misrepresentation, whereby no consideration existed in the making of a promissory note, it is held, upon demurrer, that a defense is asserted.
Where an answer has alleged an oral agreement not to enforce a note and not to hold the maker personally liable, and where such allegations, in connection with averments of fraud and misrepresentation, may establish a note of accommodation without consideration, it is held, for reasons stated in the opinion, that a defense is asserted.
Appeal from District Court, Divide County; Moellring, Judge.
Action by the Security State Bank of Crosby against Edwin Peterson. From an order overruling a demurrer to the answer, plaintiff appeals. Affirmed.R. H. Points, of Crosby, and Leighton & Brace, of Minot, for appellant.
Braatelien & McIlraith, of Crosby, for respondent.
Plaintiff bank, in its complaint, has alleged the making of a promissory note by defendant to plaintiff. In an answer defendant alleges, for a first defense, that he did not receive any consideration whatsoever for the promissory note; for a third defense, that the note was obtained by fraud and misrepresentation that it was necessary for plaintiff to secure such note from defendant before the plaintiff would extend credit to the United Consumers' Stores Company, in which defendant was interested; that defendant relied upon such false representations, and thereby made the note; that, in fact, the loan to the Stores Company had been made several weeks prior to the time of the making of said defendant's note; that nothing was furnished by plaintiff in reliance upon defendant's note; that such note did not create any obligation at the time it was given or at any time, and was wholly lacking in any consideration whatsoever; for a fourth defense, that the note was made upon the understanding that it was never to be effective or to be enforced; that plaintiff had previously made a loan of $18,000 to the Stores Company, and represented to defendant that such loan was an excess loan not permitted by law; that in order to satisfy the Bank Examiner and the law it was necessary to secure notes from individuals in an amount equal to, and to substitute for, such excessive loan, all for purposes of examination of the bank; that it was amply secured by other notes and security; that defendant relied upon these assurances, and so executed the note; that such note was given for such special purposes only, and its delivery was induced by fraud, deceit, and false representations for plaintiff's benefit; that, in addition to obtaining such note as an asset of the bank, plaintiff obtained such note partially to gain favor with, and secure the patronage of, the Stores Company, which was then operating its store in a large mercantile business at Crosby, N. D.; that such store had bank accounts, and made extensive bank deposits at banks at Crosby, N. D., where plaintiff was engaged in the banking business, but such Stores Company had not, prior to the procurement of such note, extensive deposits with plaintiff bank; that, partly to secure such business and patronage of the Stores Company, plaintiff, conspiring with the Stores Company, through fraud, deceit, fraudulent concealment, and false pretenses as alleged,...
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...Gray, 70 N.D. 549, 296 N.W. 419. The allegations of a complaint attacked by demurrer are to be liberally construed. Security State Bank v. Peterson, 49 N.D. 585, 192 N.W. 491. Applying these rules to the allegations of the complaint, it appears that the plaintiff has complied with the sales......
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Stern v. Gray, 6723.
...v. Townley et al., 43 N.D. 118, 122, 174 N.W. 755); and the allegations thereof are to be liberally construed. Security State Bank v. Peterson, 49 N.D. 585, 590, 192 N.W. 491, 492. [3] Plaintiff appealed to the district court from a holding of the tax commissioner, and in his complaint alle......
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