Moore v. Booker

62 N.W. 607, 4 N.D. 543, 1894 N.D. LEXIS 57

• Court: North Dakota Supreme Court
• Decided: September 11, 1894
• Status: Published

Opinions

Bartholomew, C. J.

This was an action brought to foreclose two real estate mortgages upon the same property, and the prayer asked for a personal judgment for deficiency. Louisiana E. Moore, the respondent was the original mortgagee. ■ The defendant Barbara J. Webb, who is the daughter of respondent, was the mortgagor, and the appellants, Booker and Ryan, were charged as subsequent grantees of Webb. It was against them that the personal judgment was asked. They resisted on the ground that they never assumed the payment of the mortgages. The trial court found the issues against them. All the evidence for plaintiff, not documentary, was in form of depositions, all of which were taken at Spokane Falls, in the State of Washington, upon one notice, before one notary, and on the same- day. The first assignment of error relates to the refusal of the court to exclude these depositions. At the proper time, and in the proper manner, Booker and Ryan moved to suppress' the depositions, for the following reasons: “(i) That the notice does not sufficiently state the place or office at which such depositions will be taken; (2) that it does not appear, by the certificate of the notary or elsewhere, in said deposition,' that the notary taking said deposition was or is not a relative of either party, or otherwise interested in the above action; (3) that it does not appear in said deposition, by certificate or otherwise, that the person who wrote said deposition was a disinterested person.” Other reasons are urged in argument, but no others were assigned in the motion, and obviously no others can be now considered.

The notice of taking the depositions stated they would be taken “by and before J. B. Wood, Esq., a notary public of the State of Washington, at his office in the City of Spokane Falls, in the County of Spokane, and State of Washington.” The point urged is that the notice does not specify the street or number where the office of the notary is located. But there is nothing before the court to show that the streets of Spokane Falls are named, or the buildings thereon numbered. We are not charged with judicial knowledge of the condition of all the cities of other states, or the number of inhabitants therein. Britton v. Berry, 20 , 30 N. W. 254. Were it otherwise, until these defendants make some showing that they desired to attend or be represented at the taking of the depositions, or make some effort to attend, or were in some manner prejudiced by the indefiniteness of the notice, we should hestitate to exclude depositions upon such a technicality.

Nor is there merit in the second objection. Section 5287 of the Compiled Laws, provides: “The officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.” The officer’s certificate in this case is silent upon that point, but we do not think this raises a presumption that the statute has been violated. The presumption is the other way. If the statute has been violated, that fact must be made to affirmatively appear. Turner v. Hardin, 80 Iowa, 691, 45 N. W. 758; Gregg v. Mallett, (N. C.) 15 S. E. 936; Colgin v. Redman, 20 Ala. 650. Our statute does not require the certificate to speak upon that point.

The third objection arises from a misapprehension. The certificate states: “That the foregoing deposition of each of said witnesses was reduced to writing by Grant J. Bowan, a suitable and proper person for that purpose, in my presence, and in the presence of each of said witnesses.” That is a full compliance with the statute which requires the officer to state in his certificate “that the deposition was reduced to writing by some proper person, naming him..” The depositions were properly admitted.

The learned counsel for the appellants contends that the court erred in refusing to exclude from the depositions, upon his application, all parole evidence tending to prove that appellants assumed and promised to pay the-mortgages existing on the real estate at the time of the sale. Counsel’s argument is based, as we understand it, upon the fact that the deed by which the property was transferred contains no assumption upon the part of the grantee of the existing mortgages, the only reference thereto being in the covenant of warranty, wherein the grantor covenants that the land is free of all incumbrances except the two mortgages here involved. Counsel cites numerous authorities illustrative of the very elementary propositions that a written contract cannot be varied, contradicted, or added to by parol; and that, when parties have deliberately put their contract in writing, such writing, in the absence of mistake or fraud, is the sole depository of their agreement, and that no evidence can be received of prior or contemporaneous conversations or understandings. The difficulty lies in the fact that these principles have no application in this case. It was entirely proper that the existing mortgages should be excepted from the covenant of warranty. But the fact does not show that the grantee did or did not assume the payment of such mortgages. The contract by which a grantee assumes the payment of existing incumbrances is separate and distinct from the conveyance. It may be, and often is, embodied in the deed; but it may be by separate writing, or it may rest entirely in parol. In either case, where, as is claimed in this instance, the amount of the incumbrance is deducted from the purchase price, and the balance only paid to the grantor, the contract to assume the incumbrance is an original promise on the part of the grantee to pay his own debt in a particular manner; and the holder of the incumbrance can take advantage of this promise, in a court of equity, and obtain a personal judgment for deficiency against the grantee. Wright v. Briggs, 99 Ind. 563; Merriman v. Moore, 90 Pa. St. 78; Lamb v. Tucker, 42 Iowa, 118; Winans v. Wilkie, 41 Mich. 264, 1 N. W. 1049; Bolles v. Beach, 22 N. J. Law, 680; Wilson v. King, 23 N. J. Eq. 150; Johnson v. Harder, 45 Iowa, 677; Ross v. Kennison, 38 Iowa, 396; Thompson v. Bertram, 14 Iowa, 476; Vrooman v. Turner, 69 N. Y. 280; Douglass v. Wells, 18 Hun. 88; Crowell v. Hospital of St. Barnabus, 27 N. J. Eq. 650; Conover v. Brown, 29 N. J. Eq. 510. And in many courts this promise to assume and pay an incumbrance may be enforced in actions at law. See Jones, Mortg. § 758, and case cited in notes.

The appellants ask to eliminate from the depositions all evidence by which it was sought to establish that appellant Ryan was the agent of appellant Booker, based upon the statements of Ryan, made at the time of the transaction. This was refused, and the refusal was clearly error, as an agents authority, or the agency itself, cannot be established by the declarations of the alleged agent. But in the final disposition made of the case this error become entirely immaterial. At the close of plaintiff’s testimony appellants moved that the case be dismissed as to them on the ground that there was no proof of authority on the part of Ryan to assume incumbrances, and no ratification of such act. The motion was denied, but appellants did not see proper to stand upon the motion, but proceeded to introduce their testimony; therefore, on the authority of Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000, and cases therein cited, we cannot review the ruling. At the close of the testimony, appellants renewed their motion, and it was again denied. But we think the subsequent action of the court renders that ruling immaterial also. The original complaint, after alleging the execution of the notes and mortgages by Barbara J. Webb to Mrs. Moore, set up that “the defendant Barbara J. Webb, sold and conveyed to the defendant Lewis E. Booker the mortgaged premises subject to said mortgage, and the said Lewis E. Booker, through his agent, George W. Ryan, one of the defendants herein, covenanted and agreed that they would assume said mortgage, and pay off and discharge the same.” That is to say, Booker, the principal, through Ryan, the agent, covenanted that the principal and the agent should do certain things. That is, of course, an impossible statement, as the principal, through the agent, cannot contract for the agent. That would be to make the principal the agent and the agent the principal. If there was any contractual obligation resting on Ryan, he made it himself. But there was no pretense in the original complaint that he contracted for himself. The only liability that could rest upon Ryan under that complaint would arise from his misrepresentations as to his agency, and that would be a liability of which respondent, Moore, could take no advantage. So far the complaint showed, Ryan was improperly in the case. But the second finding of facts reads: “Found, that the defendant Geox-ge Ryan purchased from defendant Bai'bai'a J. Webb the estate descxdbed in the complaint for the joint benefit of himself and the defendant Lewis E. Booker, and that the title to said property was taken in the name of the defendant Booker, and said Booker accepted said conveyance.” The court also ordex'ed the complaint to be amended to coi'respond with the findings. This was done, and the amended complaint, instead of chax-ging a purchase by Booker, through Ryan, as agent, charged a purchase by Ryan for the joint benefit of himself and Booker; thus making, in connection with the other avex'ments, a cause of action against Ryan as well as Booker. It is urged upon us with much force that there is no warrant in our statutes for this action of the coui't, or, if waixanted by law, still it was an abuse of discretion. Doubtless the 'tidal court acted under § 4938, Comp. Laws, which reads: “The court may, before or after judgment, in furtherance of justice, and on such tex'ms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of a pai'ty, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” It is first urged that the evidence does not establish the fact which the coui't found, and with which the pleading was made to conform. We think otherwise. In the first place, the joint answer of the appellants to the original complaint states: “Defendants admit the purchase of the property set forth and descidbed in plaintiff’s complaint fi'om Barbara J. Webb, and admit that they purchased the same subject to the mortgage against said property.” This, standing alone, in view of the peculiar language of the complaint, might not be conclusive upon appellants; but Mr. Ryan went upon the stand as a witness for himself and Mr. Booker, and in his testimony he clearly states that he bought property for himself and Mr. Booker. He claims that he had no antecedent authority from «Mr. Booker; that he made the purchase on his own responsibility; took the deed in Booker’s name; that Booker accepted the deed; and, when the matter was explained to him, he was fully satisfied. This evidence clearly sustains the findings, and it comes from appellants.

Did the amendment change substantially the claim or defense? The claim in the original complaint, so far as the appeal involves it, was for a personal judgment for deficiency against appellants. Under the amended complaint it is not different, and under either complaint the claim grows out of the same transaction. The defense that the incumbrances were not assumed is as complete to one complaint as the other. The amendment was a matter entirely within the sound discretion of the trial court, and we cannot say that such discretion was abused. The court found as follows: “Found, that as a part of the purchase price of said property the defendant Ryan agreed to pay the debts secured by the mortgages described in the complaint; that said defendants, Booker and Ryan, have not paid the said debts, nor any part thereof.” If the judgment against Mr. Booker can be sustained, it must be upon this finding. Upon its face, the language would rather appear to exclude any promise by or in behalf of Mr. Booker. But the finding is fragmentary and ambiguous. All the findings should be construed together. From the second finding it appears that Ryan was the party who carried on and concluded the -negotiations for the purchase, but that the purchase was for the joint benefit of himself and Booker. It may be only fair, then, to say that when, in the next finding, the court says that Ryan promised, it was speaking of him in the capacity in which the former finding showed him to be acting — i. e. in his own behalf, and as agent for Booker. It is our duty, also, in this connection, to remember that these findings are followed by a conclusion of law to the effect that plaintiff was entitled to a personal judgment for deficiency against these defendants. Without a finding of a promise to pay or assume the incumbrance, binding upon Mr.' Booker, this conclusion would be clearly and palpably unwarranted. These considerations lead my associates to the conclusion that what the court intended to find and what it did in fact find was that Ryan, for himself and as agent for Booker, promised, etc. It is constantly urged upon us that there is no evidence that Ryan had any authority from Booker to assume the mortgages. This was not necessary. Ryan himself testified to the purchase by him for their joint benefit; that he took the conveyance in Mr. Booker’s name, and forwarded it to him; that he drew upon the bank of which Mr. Booker was president for the cash payment of $2,000, and that his draft was honored, and that Mr. Booker was well satisfied with the arrangements. He also testified that at the same time, and as a part of the same deal, he purchased from the same grantor, and for the joint benefit of himself and Mr. Booker, several other parcels of realty, and as part payment therefor he assumed certain debts of the grantor, which were subsequently paid by the grantees. These facts establish an agency broad enough in its terms to wax-rant the agent in assuming these mortgages. In so doing the agent simply px-ovided for payment in a manner that required less ready money to close the transaction. See Schley v. Fryer, 100 N. Y. 71, 2 N. E. 280.

The findings are sufficient to warx-ant the judgment, if they are suppoi'ted by the evidence, and this is the only x-emaining question. The original complaint chax-ged a purchase by Booker, through Ryan as agent. The complaint was in that condition when the testimony was taken, and all the evidence on the part of plaintiff tended to support the complaint. There is no claim of any individual promise on the part of Mr. Ryan. He simply claimed to be repx'esenting Mr. Booker; but if he was in fact x-epresenting himself alone, or jointly with another, he would be personally bound by any px-omise he made on behalf of his fictitious or assumed principal. The evidence of a joint purchase came from defendants’ witness, and they cannot complain that the court so found. Plaintiff’s witnesses testified only to the representations of Mr. Ryan. Their evidence upon that point may be entix-ely true, and yet the purchase may have been in fact for the joint benefit of these defendants. But four witnesses for plaintiff testify with more or less directness that Ryan promised to assume and pay off these incumbrances. This Mr. Ryan contradicts unqualifiedly, and there are many facts and circumstances in the case that seem to corroborate him, but it is too clear for hesitation that in this, condition of the testimony we cannot say that the finding of the trial court was against the clear preponderance of the evidence, and consequently the judgment below must in all things be affirmed.