Volk v. Hirning

• Decision Date: 30 June 1928
• Docket Number: No. 5515.,5515.
• Citation: 56 N.D. 937,220 N.W. 446
• Parties: VOLK et al. v. HIRNING et al.
• Court: North Dakota Supreme Court

56 N.D. 937

220 N.W. 446

VOLK et al.

v.HIRNING et al.

No. 5515.

Supreme Court of North Dakota.

June 30, 1928.

Syllabus by the Court.

Where the facts are undisputed, are sufficient to determine the issues involved, and are such that the jury can return but one proper verdict, it is the duty of the trial court to order judgment notwithstanding the verdict in accordance with these facts, when an improper verdict has been returned.

Where, on a motion for judgment notwithstanding the verdict or for a new trial, the trial court grants a new trial because of the insufficiency of the evidence to sustain the verdict, the action of the trial court will not be reversed on appeal, unless the court has abused its discretion. In the instant case it is held the court was justified in granting a new trial on an issue involving two of the defendants.

Appeal from District Court, Emmons County; Geo. M. McKenna, Judge.

Action by R. M. Volk and others against Henry A. Hirning and others. Judgment for plaintiff notwithstanding the verdict as against one defendant, and granting a new trial as against the remaining defendants, and defendants appeal. Affirmed.Arthur B. Atkins, of Napoleon, and Chas. Coventry, of Linton, for appellants.

Lynn & Lynn, of Linton, for respondents.

BURR, J.

The complaint in this case sets forth three causes of action, on promissory notes for $5,000, $2,000, and $949.50, respectively, all dated February 28, 1923, made by the defendant Henry A. Hirning to the First State Bank of Hague, and indorsed by his brothers, the remaining defendants. The plaintiffs claim the indorsements by Christ Hirning and Karl Hirning were made before maturity “for the purpose of inducing the payee to accept same and extend credit thereon, and with intent to charge themselves as first indorsers thereon, and indorsed said note as sureties and guarantors, and thereby promised to pay said note upon the presentment of same at the date of maturity.” The complaint then alleges the indorsement and transfer of the notes to the plaintiffs herein, failure to pay, and due presentment to the indorsers, and asks judgment for the full amount.

The defendant Henry A. Hirning answered, alleging failure of consideration for the notes, and puts the plaintiffs on their proof. The remaining defendants answered jointly and set forth the same defense as their codefendant, and the further defense that-

They never indorsed the first note, and “that their indorsements to the two certain promissory notes described in plaintiffs' second and third causes of action were secured from the defendants by fraud, false representations, and trickery on the part of the plaintiffs, and that the defendants were induced to indorse said notes by virtue of the following representations made by the plaintiffs, as follows, to wit: That the notes referred to in plaintiffs' second and third causes of action had been sold to the First State Bank of Hague, but had been indorsed by the plaintiffs, and that the First State Bank of Hague had requested the plaintiffs to withdraw said notes from the assets of said bank, and that the plaintiffs agreed, promised, and represented to the defendants that, if they would indorse the said notes herein referred to, they would personally see that there would be no liability to these defendants, and that the sole reason they desired their indorsements on these notes was that it would make the paper look better, and that the First State Bank of Hague would let it remain as a part of the assets of said bank until fall, and that before fall the plaintiffs would resell the land, take up the notes, and return them to the defendants, and that the plaintiffs then and there contracted to and with the defendants to do as herein alleged; that is, that, if the defendants would indorse these notes, they would contract to and with the defendants and would contract to sell the land for which said notes represented a part of the purchase price and return the notes to the defendants, and that the defendants were merely loaning their signatures so as to assist the plaintiffs in having the notes remain until fall as a part of the assets of the First State Bank of Hague, and that said notes were indorsed, and that in indorsing said notes the defendants believed said representations made by the plaintiffs and relying thereon, and, so relying, did indorse the notes described in plaintiffs' second and third cause of action, and not otherwise.”

The defendants further allege:

“That there was no consideration for their indorsement of the notes set out in the said second and third causes of action.”

The case was submitted to the jury, who returned a verdict “in favor of the defendants upon all the issues and for a dismissal of the action.” Plaintiffs, having moved for a directed verdict, asked for judgment notwithstanding the verdict, or, in the alternative for a new trial. The court granted the motion for judgment notwithstanding the verdict against the defendant Henry A. Hirning and granted a new trial as against the remaining defendants, but limited it to “the specific question of their liability as indorsers upon the notes sued upon, and a new trial is hereby ordered upon such question of fact and none other, and the said cause is to stand for trial upon that issue.” From the order granting a new trial and granting judgment notwithstanding the verdict and the judgment entered thereon, defendants appeal. The errors specified on this appeal are that the court erred in granting judgment notwithstanding the verdict against the defendant Henry A. Hirning and in ordering a new trial as to the issues against the remaining defendants.

In January, 1918, the board of University and school lands made a contract for sale of the N. W. 1/4 of section 36, Tp. 129, R. 75, and a contract for the S. W. 1/4 of the same section to one John Graf, on the forms prescribed by the board, the first payment on the principal to be made in 1923. In March, 1919, Graf and his wife assigned said contracts to one John Schnaible, which assignments were approved by the board of university and school lands in August of the same year. On June 22, 1920, the plaintiffs entered into negotiations with the defendant Henry A. Hirning for the sale to Hirning of the land described in these land contracts, Hirning to assume amount due the state, turn over some Idaho land, and execute notes for the remainder of the purchase price. On said date the Hague State Bank and defendant Henry Hirning signed a “memorandum of sale” known as Exhibit G, as follows:

“Hague, N. Dak., June 22, 1920.

Memorandum of Sale.

J. J. Volk & H. B. Zink-1st parties. Hy. Hirning-2nd party.

1st parties agree to sell & 2nd party agrees to buy for the sum of $50.00 per acre the west 1/2 of section 36-129-75 on the following terms. Interest @ 6% from Jan. 1st, 1921, on all deferred payments.

2nd party executes notes in the sum of $4,000 to Hague State Bank with indorsers which bank will...