Thomas v. Murphy
| Decision Date | 07 November 1902 |
| Docket Number | 13,212 - (64) |
| Citation | 91 N.W. 1097,87 Minn. 358 |
| Parties | JAMES E. THOMAS v. A. MURPHY |
| Court | Minnesota Supreme Court |
Action in the municipal court of Minneapolis to recover $125, and interest, upon a check. The case was tried before Holt, J who found in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed. Affirmed.
Fraud -- Concealment of Fact.
If a party conceals a fact material to the transaction, and peculiarly within his own knowledge, knowing that the other party acts on the presumption that no such fact exists, it is as much of a fraud as if the existence of such fact were expressly denied, or the reverse of it expressly stated.
Action on Check.
Rule applied, and held, that the findings of fact herein are sustained by the evidence, and that they sustain the conclusion of law to the effect that the check which is the subject-matter of this action was obtained from the defendant by fraud.
Fred W Reed, for appellant.
P. W. Guilford, for respondent.
Action upon a check for $125, drawn by the defendant in favor of the plaintiff. The answer admitted the making of the check, and alleged as a defense a failure of the consideration therefor, and that it was procured by fraud, setting forth the alleged facts in detail. The cause was tried by the court without a jury, and the plaintiff appealed from an order denying his motion for a new trial.
The here material facts found by the trial court are substantially these: Prior to June 1, 1900, the defendant, who then was the owner of certain lots in South Dakota, described in the amended answer herein, agreed with T. J. Cairns to trade the same to him for certain mortgages on land in Kansas. There was a mortgage of $400 on the defendant's lots, and he was to receive back a second mortgage on the lots for $200. There was some defect in the title to the lots, and thereupon the defendant's deed of the lots, wherein the plaintiff's name was inserted as grantee, was, with the Kansas mortgages, placed in the hands of the plaintiff, who executed a receipt therefor, which not only acknowledged the receipt of the deed and mortgages from the defendant and Cairns, respectively, but also contained this stipulation:
"It is hereby agreed that all of said papers are to remain in escrow in my hands until the title to the above-described Moody county, South Dakota, real estate shall have been made satisfactory, and the mortgage indebtedness against said property adjusted at $600, and until the interest of J. E. Thomas, trustee for D. Lewis, amounting to the sum of $200, shall have been satisfied, then the mortgages herein described shall be delivered to said A. Murphy."
Thereafter some disagreement occurred in regard to the trade between Cairns and defendant, and the latter refused to carry out the same, claiming that the mortgages were worthless. Finally, on October 26, 1901, plaintiff, defendant, and Cairns came to an agreement, whereby, in consideration of $125, to be paid by defendant to plaintiff, the latter was to assign and deliver to defendant the mortgages and convey the lots in Dakota to Cairns, and Cairns was to convey the same to defendant. Pursuant to this agreement, defendant delivered, on October 26, 1901, the check described in the complaint, and in consideration thereof plaintiff assigned and delivered to defendant the mortgages, and also assumed to convey the lots in Dakota by deed of quitclaim to Cairns, and drew a deed of warranty conveying the lots from Cairns to defendant, which deed was then executed by Cairns, and the deeds were then and there, as part of the same transaction, delivered by the respective grantors to the respective grantees therein.
On July 18, 1901, the plaintiff and his wife, in consideration of $225 cash paid by one J. Q. Adams to him, and in consideration of legal services of the value of about $200 rendered by Adams for and at the request of plaintiff, sold and conveyed the lots in Dakota by quitclaim to Adams, which deed was duly recorded in which deed was duly recorded in the office of the register of deeds of the county wherein said lots were situated, on July 31, 1901, that such sale and conveyance was so made by plaintiff without the knowledge or consent of defendant or Cairns, and that neither the defendant nor Cairns on October 26, 1901, when said check was delivered, knew that plaintiff had sold or conveyed lots in Dakota. If defendant had known of such conveyance, he would not have entered into the agreement of October 26, 1901,...
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