Wood v. Myrick

• Decision Date: 01 January 1872
• Citation: 17 Minn. 386
• Parties: ALEXANDER WOOD v. NATHAN MYRICK and others.
• Court: Minnesota Supreme Court

Page 386

17 Minn. 386

ALEXANDER WOODv.

NATHAN MYRICK and others.

Supreme Court of Minnesota.

This case was before the court on an appeal at the last term from an order sustaining a demurrer to portions of the answer. This is in the nature of a further hearing on other portions of the answer, which the parties stipulate may be considered as demurred to.

Daniel Buck, for appellants.

Brown & Wiswell, for respondent.

McMILLAN, J.

This is an action by the plaintiff upon the bond of Nathan Myrick, administrator of the estate of William Wood, deceased, in which the defendants Marks and Hanna are sureties. The defendants appealed from the order of the district court sustaining a demurrer to certain portions of their answer. The case was before us on this appeal at the last term, and the questions raised by the demurrer were then disposed of. The parties now, by their written stipulation, agree that a further portion of the answer shall be considered as demurred to, and the sufficiency of the facts to constitute a defense determined by the court.

The portion of the answer referred to by the stipulation is as follows: "That in the year 1867 defendant Myrick, having business in the state of New York, took with him to New York city the money originally obtained from the government of the United States belonging to the estate of the said William Wood, deceased, being the same money for which plaintiff seeks judgment; and then and there, to-wit, in 1863, in the city of New York, defendant Myrick deposited for safe keeping said money with R. W. Latham, a banker and broker of large wealth and ample means, as reputed at that time, and that during the great financial panic and money failure in 1867, in said city of New York, the said R. W. Latham became suddenly and utterly insolvent and bankrupt, and unable to pay his debts or depositors, and since then has been bankrupt and insolvent, and unable to pay said Myrick said money, or any portion thereof; that said Myrick used his best judgment, and acted in good faith, in depositing said money with said Latham, and in the usual and ordinary course of business, and that he has never been able to collect any of said money, though he has tried so to do, but that said money, and the whole thereof, has become a total loss; and said Myrick has never used any of said money, or appropriated the same to his own use or benefit whatever."

There seems to be a discrepancy between the statement in the answer that the defendant...