Harding v. Dam

[752]

KERRIGAN, J.

This is an appeal from a judgment of foreclosure of a mortgage dated June 27, 1913, alleged to have been executed by the defendant F. H. Dam in favor of the plaintiff to secure payment of a promissory note of the same date for $8,507.68, payable to the plaintiff on or before two years thereafter, and alleged to have been made by both of the defendants.

The conclusion we have reached on the merits of the case renders a consideration of the preliminary motion made by plaintiff to dismiss the appeal unnecessary.

Briefly stated, the history of the case is this: In the year 1904 defendant F. H. Dam purchased a parcel of real property from the -plaintiff, giving in payment therefor his promissory note for five thousand two hundred dollars secured by mortgage on the property. Three years later, Dam having failed to pay any portion of the principal thereof or interest thereon, he gave to plaintiff a new note for $6,074 and a new mortgage. Six years later, Dam still having paid nothing on his said indebtedness, plaintiff demanded payment, and notified him that unless a settlement was made foreclosure proceedings would be commenced. Thereupon Dam sent to the plaintiff a new note and mortgage in the amount of the principal and interest then due. This note was unsatisfactory to the plaintiff and he refused to accept it. Later, after considerable negotiation, plaintiff agreed with Dam that he would accept a note executed by him and his mother, secured by a mortgage on the property described in the complaint. Thereafter, having secured the signature of his mother to such a note, Dam sent it together with the mortgage to one Ray Manwell, who was the attorney for plaintiff, with instructions to deliver them to the plaintiff upon receipt by him for Dam of the outstanding note and a duly acknowledged satisfaction of the mortgage which had been given to secure the same. These instructions, however, it seems were not strictly carried out by Manwell, with the result that while plaintiff received the present note and mortgage, Dam has never received back the prior note, nor was the satisfaction of mortgage which he did receive acknowledged.

Upon these facts the defendants allege in their answer, and now contend, that there was no delivery of the note and mortgage in suit, and that the same are wholly without consideration.