Snelgrove v. Earl

• Decision Date: 14 June 1898
• Docket Number: 920
• Court: Utah Supreme Court
• Parties: GEORGE H. SNELGROVE, RESPONDENT, v. RACHEL EARL, APPELLANT, LINCK, MORSE ET AL., DEFENDANTS

53 P. 1017

17 Utah 321

GEORGE H. SNELGROVE, RESPONDENT, v. RACHEL EARL, APPELLANT, LINCK, MORSE ET AL., DEFENDANTS

No. 920

Supreme Court of Utah

June 14, 1898

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by George H. Snelgrove against Rachel Earl and others. Judgment for plaintiff, and defendant Rachel Earl appeals.

Affirmed.

Williams Van Cott & Sutherland, for appellant:

If these facts had been found upon, it would necessarily have appeared affirmatively that appellant was not negligent; that she used due care and that a person of ordinary prudence would not have taken any greater precautions than she took. The case should be reversed, because the affirmative and material issues were not found upon; the law to this effect is well settled. Knight v. Roche, 56 Cal. 15; Brown v. Burbank, 59 Cal. 535; DuPrat v James, 61 Cal. 361; Speegle v. Leese, 51 Cal 415; Dowd v. Clarke, 51 Cal. 262; 2 Cal. Dig. (Deering) 1291 (2).

There are defences to a promissory note which are admissable between parties to the same which are not admissable as against a holder in due course, and weight is given to this consideration in the determination of cases. 1 Dan. Nego. Ins. secs. 177, 769, 769a; White v. Wilson, 39 A. D. 438; Whitney v. Snyder, 2 Lans. (N.Y.) 478; Lewis v. Clay, Q. B. Div., reported in Chicago Legal News, Feb. 19, 1898, page 211.

Rawlins & Critchlow, for respondent.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

This action was brought to foreclose a mortgage given to secure payment of a note executed by defendant Rachel Earl. The note was dated July 1, 1891, and the mortgage was dated July 6, 1891. It does not appear that any objection was made concerning the execution of the note. The mortgage covered a piece of land 3x10 rods and another piece 4 1/2x10 rods, owned by defendant. At the time of the execution of the mortgage, the defendant and her husband, H. W. Earl, were severally indebted to the respondent in an amount equal to the sum secured by the mortgage, and the respondent desired security therefor on the premises in question. The note and mortgage were received in evidence without objection. Thereupon the defendant, among other things, offered to prove that, at the time the mortgage was executed, H. W. Earl, husband to the defendant, and in whom she had confidence, and with whom she was on friendly terms, was indebted to plaintiff, and that defendant was also indebted to the plaintiff upon notes held by him; that H. W. Earl agreed to give plaintiff security on said premises to secure such indebtedness; that thereupon said H. W. Earl represented to defendant that the note and mortgage sued upon was an incumbrance upon real estate of said H. W. Earl, and defendant was solicited to sign the same, in order to transfer any inchoate right of dower; that, relying upon the truth of such statements and the integrity of her said husband, she executed the same; that at the time, but before such mortgage was executed, one J. H. Hurd, the attorney for the plaintiff, attempted to explain to her what the paper was for, but that her said husband interrupted the explanation and stated to said attorney that the matter had been thoroughly explained and was understood by appellant; that in truth said Earl had previously stated to appellant that certain papers were to be brought for her execution, which constituted a lien on land owned by him; that she was unacquainted with business, and had she read the mortgage before execution, she would not have known that it covered her property; that she first learned that said mortgage covered her land about four years thereafter, and therefore had not commenced an action to cancel the same; that some time after said mortgage was executed her said husband inquired of her if she was willing to sign a mortgage for his benefit on said premises, and she informed him that she was willing to sign a mortgage for his benefit, but not for his creditors, and that under no consideration would she sign a mortgage on 2 1/2x10 rods, which constituted her home (this being part of the 4 1/2x10 rods covered by the mortgage); that she had been willing, if required, to sign a mortgage covering said 3x10 rods, and upon all of the 4 1/2x10 rods, except 2 1/2x10 thereof, covered by her home; that plaintiff or his attorney did not in any way attempt to deceive or practice any fraud upon her or upon any one, nor was plaintiff negligent in any way so as to be responsible for the mistake; that the mortgage was given as a renewal and an extension of indebtedness, consisting of former notes, "some of which defendant was on, and some of which H. W. Earl was on." Some of said notes, for which the mortgage was given, the appellant was absolutely bound to pay. The offer made substantially embraced the allegations contained in the answer. Thereupon the plaintiff moved for judgment. After consideration, the court held that the facts offered did not constitute a defense to the action. Among other things, the court found that the defendant made, executed, and delivered the note to plaintiff, and, to secure the payment of the same, freely, voluntarily, and with full notice and knowledge, and means of knowledge, made, executed, and delivered to plaintiff, who is the lawful owner and holder thereof, the mortgage in question, whereby she conveyed, by way of mortgage, the premises described therein to the plaintiff. A decree for foreclosure, etc., was duly entered. Thereafter appellant moved for a new trail, based upon the insufficiency of the evidence to justify the decision of the court, upon the failure of the court to find upon the issues presented in the answer, and that the decision was against law. The motion was overruled, and defendant appealed from the judgment to this court.

The appellant's contentions are that the trial court erred in failing to make an express finding as to certain defenses and affirmative issues set up in the answer heretofore set out, which are alleged to have constituted new matter in avoidance of the mortgage declared upon by the defendant, and in failing to find upon the question of the defendant's negligence in executing the same. The court found upon all the material issues contained in the complaint, and also found that the defendant made, executed and delivered the note in question to the plaintiff, and, to secure the payment thereof, she freely, voluntarily, and with full notice and knowledge, and means of knowledge, made, executed, and delivered to the plaintiff, who was the legal owner and holder thereof the mortgage, conveying, by way of mortgage, the premises described therein to the plaintiff. No evidence was given by defendant in support of her claim. The offered evidence was rejected. No objections appear to have been made to the proper execution of the note which the mortgage was afterwards given to secure, nor is it claimed that any mistake or fraud was practiced by the plaintiff to secure defendant's signature thereto. It also appears that no objection was raised until about four years after the mortgage was executed. As a general rule, when, upon the trial of a cause, the court renders its decision without making findings upon all the material issues presented by the pleadings, it is held that such decision may be reviewed, and, if prejudicial, the judgment may be set aside. This rule is applicable, however, only in cases where the issue upon which there is no finding is material, or where the findings upon the neglected issues would have the effect to destroy the other findings. If the findings made are such as to dispose of the issues which are sufficient to uphold the judgment, it is not error or against law to omit to make findings upon other issues, which, if they were made, would not invalidate the judgment. So it is held that, "if the issue presented by the answer is such that a finding upon it in favor of the defendant would not defeat the plaintiff's right of action, a failure to make such finding is immaterial." Brison v. Brison, 90 Cal. 323, 27 P. 186. In Haarstick v. Fox, 9 Utah 110, 33 P. 251, where a similar question was presented, this court said: "It is contended that the court erred in failing to find facts on the question of fraud set up in the answer. The court found, separately and specifically, that the contract set up in the complaint was sustained by the evidence. This finding...