Mohr v. Byrne

GRAY, C.

The intervener, Kowalsky, appeals from a judgment to the effect that he take nothing in the above-entitled action. The appeal was dismissed as to defendant Byrne, and the only parties respondent are the plaintiff, Mohr, and the defendant Moore (formerly Florence Blythe).

The record on appeal consists of the judgment-roll, from which it appears that the defendant Byrne made and executed to one Sol Ephraim her promissory note for twelve thousand dollars and interest, receiving as the only consideration thereof four thousand dollars in money. As security for the payment of this note, Byrne assigned to Ephraim a twelve-thousand-dollar interest in a contract which she had with Mrs. Moore (formerly Florence Blythe) for a one-tenth of the interest of the last-named person as the sole heir of the estate of Blythe. Subsequently, Ephraim indorsed the said note, and thereafter assigned the said twelve-thousand-dollar interest in the contract to the plaintiff, Mohr, as security for a two-thousand-dollar note, jointly executed and delivered by inter

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vener, Kowalsky, and Ephraim to the said plaintiff. The said twelve-thousand-dollar note and contract was thereafter made to secure other notes and obligations of Ephraim, not necessary to be here described. Thereafter plaintiff brings this ■suit upon the twelve-thousand-dollar note and contract, and -other obligations, against the maker, Byrne, Mrs. Moore, and others, not necessary to be here named. In this action Kowalsky intervened, setting out that he owned a one-half interest in the twelve-thousand-dollar note and contract involved in the suit, and praying “that a decree and judgment may be entered that he is the owner of the one-half interest—to wit, the sum of six thousand dollars—in the contract from Kate C. Byrne to Sol Ephraim, and thereafter transferred and assigned over to the plaintiff, Henry Mohr, being the same contract for twelve thousand dollars as alleged in plaintiff’s complaint, and that the said Henry Mohr has no interest or ownership and is not entitled to any part of said contract belonging to the said Henry I. Kowalsky, the intervener herein.”

On issues made by answers to the original complaint and to the intervention, a trial was had, and the court found for plaintiff, and gave him judgment against defendants Moore and Byrne on account of said twelve-thousand-dollar note, in the sum of four thousand dollars and interest thereon, at the rate of six per cent per annum, from the date of said note, November 7, 1892, less the amount of two several notes executed by Ephraim and assigned to Byrne, and by her set up as a counterclaim, which left the judgment obtained by Mohr on account of the twelve-thousand-dollar note less in amount by several hundred dollars than the sum due on the said two-thousand-dollar note executed by Ephraim and Kowalsky to plaintiff. The court found facts showing that the twelve-thousand-dollar note was assigned to plaintiff after it was due, and that plaintiff had no notice that Kowalsky had any interest in the note until long after he had taken it as security for the said two-thousand-dollar note.