Veazie v. Morse

• Court: Minnesota Supreme Court
• Writing for the Court: MITCHELL, J.
• Citation: Veazie v. Morse, 67 Minn. 100, 69 N.W. 637 (Minn. 1896)
• Decision Date: 28 December 1896
• Docket Number: 10,404--(148)
• Parties: WILLIAM E. VEAZIE v. ELISHA MORSE

69 N.W. 637

67 Minn. 100

WILLIAM E. VEAZIE v. ELISHA MORSE

Nos. 10,404--(148)

Supreme Court of Minnesota

December 28, 1896

Appeal by plaintiff from an order of the district court for Hennepin county, Smith, J., sustaining a demurrer to the complaint. Affirmed.

Order affirmed.

Harrison & Noyes, for appellant.

Bartleson & Paul, for respondent.

OPINION

MITCHELL, J.

Stripped of surplus verbiage, the material allegations of the complaint are as follows: The defendant being indebted to the plaintiff, the parties made a settlement whereby the plaintiff accepted, and the defendant transferred, or caused to be transferred, to him in payment of this indebtedness several promissory notes executed by third parties, and secured by mortgages on real estate; the defendant guarantying the collection of the notes thus transferred. The makers of these notes were then, and still are, wholly insolvent, so that nothing could have been collected from them by action. The mortgage security was not worth over one-half the amount of the notes. The notes having become due, and being dishonored, the defendant requested the plaintiff to foreclose, and bid in the premises for the full amount due on the respective notes, at the same time orally promising him that, if such foreclosures did not result in the collection of the money by redemptions from the sales, he would pay the plaintiff the amount due on the notes according to the terms of the guaranty, with costs of foreclosure, and that plaintiff should then convey to him (defendant) the property thus acquired by foreclosure. Acting upon this request, and for the sole purpose of complying with it, plaintiff foreclosed, and bid in the property for the full amount due on the notes and costs of sale. The time of redemption expired, and none of the property was redeemed. Thereupon plaintiff tendered defendant a deed of the property, and demanded payment of the amount due on the notes and costs of foreclosure. Defendant refused to accept the deed, or to pay as demanded.

Upon these facts the plaintiff demanded judgment for the amount due on the notes and the costs expended by him in foreclosing. The defendant demurred on the ground that the complaint did not state a cause of action. From an order sustaining the demurrer the plaintiff appealed.

Briefly stated, the position of the defendant is that the terms of the original contract of guaranty were fully satisfied by the...