Wetzstein v. Joy

34 P. 876, 13 Mont. 444, 1893 Mont. LEXIS 68

• Court: Montana Supreme Court
• Decided: November 27, 1893
• Status: Published

Opinions

De Witt, J.

The action of the district court in instructing the jury to find for the plaintiffs was, in effect, to take the case away from the consideration of the jury, and for the court to find that plaintiffs had introduced testimony tending to prove the material allegations of the complaint, and that defendants had not introduced testimony tending to contradict the plaintiffs, or tending to establish their defense. The action of the court was in the nature of a nonsuit of the defense, together with a holding that the facts made a case for this plaintiff.

There is no material conflict in the testimony. We will state it as contained in the record, and then determine whether it justified the action of the court. About October 4th, at Livingston, McLoughlin informed Joy that he held the note, and mortgage of the Wetzsteins. It seems that McLoughlin wished to dispose of it. There was then due $121.86 interest. Joy offered $550, which was the face. This was accepted, and McLoughlin told Joy to send the money to Missoula. Joy did not do so for a week. He then wrote to McLoughlin at Missoula, and asked him if he -was still willing to take his offer for the note. McLoughlin replied on October 15th as follows: “Yours of the 12th received. In reply will say that'you may send me the draft for $550, and take up the note and mortgage.” On October 17th Joy sent to McLoughlin, at Missoula, his check for this amount, $550, with his letter accepting the proposition, and requesting McLoughlin to forward the note and mortgage and an assignment. It does not appear that McLoughlin at that time or ever retracted his offer of October 12th. The method of payment by Joy’s check was satisfactory to McLoughlin. No objection was ever made by him to the method of payment, but this check came back to Joy; it does not appear when, or from whom. It was not collected by McLoughliu. It does not appear that it was returned before October 22d. The note and mortgage never came to Joy from McLouglilin. They did come to D. A. McCaw, cashier of the National Park Bank of Livingston, on the morning of October 22d. This was the day after Wetzstein had paid into court, iu the presence of McCaw, the McCaw cashier’s check to satisfy the note. Wetzstein said that he understood the note and mortgage were in the bank for collection when he paid Joy on October 21st. Now, McCaw had, at the instance of Wetzstein, on October 18th, written to McLoughliu, at Missoula, for the note and mortgage, and Wetzstein had deposited with him, McCaw, $680, to be paid to McLouglilin when he delivered the note and mortgage. It seems that this Welzstein-McCaw matter was unknown to McLouglilin, at least prior to his receipt, if he did receive it, of McCaw’s letter of the 18th. This letter was one day later than the letter of Joy to McLouglilin sending the $550. At one place in his testimony McCaw says that he sent the money to McLouglilin on the 18th, and again it appears that he sent it on the receipt of the note and mortgage, on the 22d. In any event, Wetzstein had deposited the amount with him for the note and mortgage before he, Wetzstein, paid Joy on the 21st. Now, Wetzstein claims that after paying Joy he was obliged to pay the amount the second time, to McLouglilin. As the evidence in the case appears, he was not obliged to do any thing of the kind. Joy told him not to pay to the bank or McLouglilin; that he (Joy, or Mrs. Joy) owned the note, and he would give him (Wetzstein) a $10,000 bond to protect him. McCaw, bank cashier, did not require Wetzstein to pay the note. The fact is that Wetzstein manifested uncommon assiduity in rushing to pay his note a second time, when no one was pushing the payment, and the person to whom he had already paid offered him abundant indemnity. Wetzstein exhibited a fever of liquidation, which is as unusual generally as it is inexplicable in this case. McCaw’s conduct also is extraordinary. He prepared his cashier’s check, and went with Wetzstein to the clerk of the court, to pay the note on the Joy-Wetzstein suit. He did tliis when, as he says, he had sent to Missoula for the note and mortgage at Wetzstein’s request, and when he had, as he says, Wetzstein’s money in his bank to pay McLoughlin for the note and mortgage.

Now, this peculiar condition of acts and facts plaintiff claimed before the district court established his cause of action against defendant; that is, that defendant Hattie M. Joy was not the owner or holder of the note and mortgage when she commenced the action to foreclose. The court took this view, and ruled accordingly. But we ave of opinion that there was not .evidence to sustain this position. The contract between Joy and McLoughlin is shown in evidence, and also the payment by Joy to McLoughlin of the $550, by a method which was within the contemplation of the parties, and not objected to by Mc-Loughlin. To be sure, the check of Joy to McLoughlin came back to Joy, but not before Wetzstein had paid Joy. Mc-Loughlin is not in court in this case denying the making of the contract, which Joy testified was made between himself and McLoughlin. But this diligent debtor, Wetzstein, takes it upon himself to say that the Joy-McLoughlin contract was not made. In his anxiety to interpret, or deny, rather, the contract of other parties, he accentuates his views by forcing his money onto McLoughlin. The sole evidence of plaintiff’s contention that Joy was not the owner of the note and mortgage is the fact that Wetzstein and McCaw, between them, managed to get the possession or custody of the note and mortgage into McCaw’s hands. We are of the opinion that this fact was not evidence that Joy was not the owner, in the face of Joy’s testimony as to his contract with McLoughlin, and in the absence of McLouglilin’s testimony as to the transaction. It is true that Joy was not the “ holder” of the note and mortgage, in the sense of having a manual grasp upon the paper upon which the note was written. But the evidence does not show that he was not the legal holder, and entitled to bring action for its collection.

It is plain that the judgment in this case cannot be affirmed. The case, as it is before us, is a most peculiar one; but, upon a consideration of the undisputed facts, we ai’e of opinion that a modification of the judgment can be made which will do substantial, and indeed exact, justice between the parties. The situation seems to be as follows: Joy’s case, as he presents it, is that he concedes he has $550 in his hands, which sum is the consideration for Avliich he bought the note and mortgage. Upon this sum lie makes no claim. It came into his hands in this manner, that is to say: Wetzstein interfered with the JoyMcLoughlin contract, and thrust his money in McLoughlin’s hands.. Then McLoughlin sends the $550 along to Joy. That amount thus went around the circuit from Wetzstein, through McLoughlin, to Joy. Thus Wetzstein has gotten it into the hands of Joy. It is in Joy’s hands under the circumstances that McLoughlin disclaimed it by sending it to Joy, and Joy concedes that he does not oivn or claim it. Wetzstein claims this amount, and more, too; but, as to this amount — $550—no one says him nay. With these facts and rights and claims of the parties agreed to and admitted, as the case is before us, there seems to be no reason Avhy Wetzstein should not retain liis judgment to the extent of $550 against Joy. The case is therefore remanded to the district court, with directions to modify the judgment so that Wetzstein shall recover from Joy $550, without interest.

It is further ordered that the costs be taxed against the respondent Wetzstein, for the reason that this whole controversy arose from respondent’s acts in needlessly procuring this $550 to be conveyed into Joy’s hands.

Modified.

Pemberton, C. J., concurs.