Anderson v. Rockwood

63 N.W. 1023, 62 Minn. 1, 1895 Minn. LEXIS 1

• Court: Supreme Court of Minnesota
• Decided: July 5, 1895
• Docket: Nos. 9381-(184)
• Status: Published

Opinion

MITCHELL, J.

The plaintiff alleges that he purchased a judgment against one Mortimer, and took an assignment of it in the name of defendant, who was to hold it as his trustee, and, when collected, pay over the proceeds to him; that defendant has collected $640 on the judgment, which he has failed and refused to pay over. The defendant, in his answer, in effect admits plaintiff’s ownership of the judgment, the assignment of it to him in trust, and the collection thereon by him of the $640, but he alleges that the agreement under which the judgment was assigned to him was that he was to hold it as security for a debt due from plaintiff to one Oullom, and that the money collected on it was, in accordance with this agreement, paid over to Cullom at plaintiff’s direction. Plaintiff, in his reply, denies this.

The evidence was practically undisputed that defendant had paid over, or accounted for, the money to Cullom; and the only issue, under the testimony, was whether defendant had done so with the consent or by the authority of plaintiff. On the trial, defendant testified to his version of the transaction, in which he was corroborated by Cullom. On the other hand, plaintiff positively denied that there was any understanding that defendant was to hold the judgment as security for Cullom’s benefit, or that he ever authorized or consented to defendant’s paying the proceeds to Cullom. There was considerable evidence as to the relations of plaintiff, defendant, and Cullom to, and their dealings with, each other, tending more or less to corroborate or discredit the direct testimony of the respective .parties; but none of this circumstantial evidence was by any means •Conclusive. The question was largely one of the credibility of the witnesses, and, whatever impressions the record may convey as to the preponderance of evidence, we find nothing to justify us in disturbing the verdict of the jury, approved, as it impliedly is, by the trial court. Evidence that, at the time of the assignment of the judgment, plaintiff was not indebted to Cullom, but that the latter was indebted to the former, was admissible as corroborative of plaintiff’s version of the agreement between him and defendant.

It is further urged that plaintiff’s object in tailing the assignment of the judgment in defendant’s name was to defraud his creditors. Assuming, without deciding, that this would have been a defense to this action, it should have been specially pleaded.

•Order affirmed.