Struckmeyer v. Lamb

• Decision Date: 31 January 1896
• Citation: 65 N.W. 930,64 Minn. 57
• Parties: STRUCKMEYER v. LAMB.
• Court: Minnesota Supreme Court

64 Minn. 57

65 N.W. 930

STRUCKMEYER

v.LAMB.

Supreme Court of Minnesota.

Jan. 31, 1896.

(Syllabus by the Court.)

1. L., being the owner of certain notes and chattel mortgages executed by J., assigned them, in absolute terms, to S., for the purpose of enabling him, by action thereon, to compel J. to pay a debt owing by him to S. If the proceeds were collected, they were to be turned over to L. Held that, for such purpose, S. was a trustee of an express trust, and might maintain an action in his own name.

2. L. was also the attorney for S. in the whole proceedings, and induced him, by fraudulent representations, to take the assignment of the instruments and bring suit thereon; stating that they were valid and free from any infirmity, and that if S. would bring suit upon them against J., and was thereby put to costs and expenses, he would pay the same to S. The notes and mortgages were in fact usurious and invalid, and, upon suit brought against J. thereon, S. was defeated, and compelled to pay $294.95 costs and expenses. Held, that L. was liable to S. for the amount of the costs and expenses so paid by him.

3. Certain allegations in the complaint construed as constituting only one cause of action.

Appeal from district court, Martin county; M. J. Severance, Judge.

Action by William Struckmeyer against W. L. Lamb for damages. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

Voreis & Mathwig, for appellant.

T. S. Fisk (H.H. Dunn, of counsel), for respondent.

BUCK, J.

The complaint in this action is quite lengthy, and the facts cannot be stated briefly. The appeal is from an order overruling the defendant's demurrer to the complaint. The material facts are admitted by the demurrer. The defendant Lamb is a practicing attorney at Fairmont, in the county of Martin, in this state. It appears that in March, 1894, one Jonker was indebted to Louisa Reiss in the sum of about $150, and to defendant in the sum of about $50, and the defendant induced Jonker to execute, as evidence and security for such indebtedness, two promissory notes,-one for $200, due November 1, 1894, and one for $48.65, due September 1, 1894,-each note drawing interest at the rate of 10 per cent. per annum, by the express terms thereof; and, to secure the same, Jonker executed a chattel mortgage upon a large amount of personal property, and the defendant received, retained, and took $20 usurious interest, which was included in said notes and mortgage. For some unexplained reason, the defendant took both notes and the chattel mortgage in the name of Louisa Reiss. After the execution of the chattel mortgage, Lamb, without the knowledge and consent of Jonker, wrongfully altered and changed the chattel mortgage by inserting therein a description of a large quantity of crops and farming machinery; and, by reason of the alteration of said mortgage and the usury in the notes, they are alleged in the complaint to be invalid and void. Subsequent to the execution of the notes and mortgages, and on the 7th day of April, 1894, the defendant also held a note of $14 against said Jonker, which was given for usurious interest, and on said day the defendant loaned to Jonker the sum of $5, and, to secure this loan and the usurious note of $14, Jonker executed and delivered to defendant a note and chattel mortgage which were usurious, although apparently valid upon their face, due November 1, 1894, which mortgage covered a large portion of the personal property described in the prior chattel mortgage, which Jonker had executed to Louisa Reiss. When Louisa Reiss learned of the infirmity and illegality of the notes and chattel mortgage executed to her in her name, which was about the 1st of August, 1894, she repudiated the transaction and refused to hold the security, and refused to attempt to enforce collections of the same; and thereupon the defendant, Lamb, who had been her agent during all this time, agreed with her to assume her interest in said notes, and collect the same. On the 10th day of August, 1894, Jonker was also indebted to this plaintiff in the sum of $89.95, he (Jonker) being then insolvent, and could not pay, and refused to pay, the same to plaintiff. On the last-named day, and while Jonker was so indebted to plaintiff, this defendant, Lamb, who was the attorney and counselor of plaintiff, having learned of such indebtedness from Jonker to the plaintiff, approached him, and represented to him that, if he would...