Wegerer v. Jordan

SHAW, J.

This is an action to foreclose a mortgage on certain real estate given to secure the payment of a non-negotiable promissory note, which note and mortgage had been by defendants D. P. and Louise Jordan made and executed to their codefendants W. V. Holley and Jacob Meyer, and prior to the delivery of which defendants A. L. and Dora Rowe indorsed the same. The court gave judgment in favor of plaintiff against Holley and Meyer as prayed for, and gave judgment against plaintiff in favor of the other defendants, from which, and an order denying her motion for a new trial, plaintiff prosecutes this appeal.

The note and mortgage bear date May 19, 1905, and Holley and Meyer, on June 13, 1905, for a valuable consideration, indorsed, transferred and assigned the same to plaintiff. The complaint is in the usual form.

The defense of respondents, other than Holley and Meyer, is based upon the alleged fraud of the latter in procuring the note and mortgage signed by defendants Jordan, as well as the indorsement thereof by defendants Rowe.

It appears that the note was given in payment for ten thousand shares of the capital stock of the Imperial Gold Mines Company of Mexico, which stock and the mines of said company Holley and Meyer represented “to be of great value,” and that by reason of such representations their codefendants were induced to give said note so indorsed by defendants Rowe, together with the mortgage securing payment of the same.

The answer alleges “that the said representations as to the value of said mining stock were false, and it is the information and belief of these defendants that the said Imperial Gold Mines Company have never had any mines

[364]

in the Republic of Mexico, and that the mining stock had no value whatever. ’ ’

The court, among other facts, found “that the stock was of no value,” and “that the note and mortgage were obtained by false and fraudulent representations, which representations were as follows: Holley and Meyer represented to defendants Jordan and Rowe that the said mining stock was of great value; that the mine owned by the Imperial Gold Mines Company was of great value; that the stock would bear six per cent interest on investment; that the stock would pay immense dividends, all of which said representations being false and fraudulent and being intended to deceive and defraud the defendants Jordan and Rowe, and that said Jordan and Rowe were deceived by said representations of Holley and Meyer which were false and fraudulent, and that defendants Jordan and wife were induced by said false and fraudulent representations to execute the note and mortgage, . . . and by means of said false and fraudulent representations A. L. Rowe and his wife, Dora Rowe, were induced to sign the same as guarantors. ’ ’