Morgan v. Cobb

The court erred in refusing, on the plaintiff’s motion, to strike the only plea which sought to set up a defense to the action.

Complaint. Before Judge Meadow. Hart superior court. December 20, 1910. W. S. Morgan brought an action against Mattie C. Cobb on four promissory notes aggregating $346 principal. The defendant, in her answer, admitted that she had executed and delivered the notes to the plaintiff, and that he was the owner of the same and had the right to sue thereon. By way of special plea she set up the following: “For further plea and answer this defendant says that she was induced to sign said notes by the false statements and representations and fraudulent acts of the plaintiff, as will appear from the following statement of facts: Some years ago, previous to the time said notes were signed, defendant bought a small tract of land in said county, containing twenty acres, from J. A. Cook, and paid for the same, said land being a portion of a tract containing 100 acres, more or less, which the said J. A. Cook had purchased from J. N. Edwards, and on which entire tract of land the said J. A. Cook owed said Edwards a balance of the purchase-money, amounting to three hundred and forty-six dollars, including interest up to January 15, 1904, which said sum this said defendant desired to borrow with which to pay said indebtedness as an accommodation to the said J. A. Cook, she, the said defendant, to have titles to said entire tract of land made to her to secure her for said money which she desired to advance on said land. On January 14, 1904, plaintiff came to the home of this defendant, and, voluntarily and unsolicited, proposed to loan her the said sum of money at the rate of 8 per cent, per annum, which he claimed to be doing only as an accommodation to this defendant. Defendant at first declined his offer of a loan, but plaintiff insisted, and told defendant that he would give her papers, or bond for title to the entire tract of land containing one hundred acres, more or less, to make her safe, and secure her against loss on account of advancing said money, and promised defendant that he would have Ií. H. Chandler, defendant’s attorney, to prepare all papers pertaining to said transaction. Defendant then believed all of said statements and representations made by said plaintiff to be true, and acted upon the same, and finally agreed to borrow said sum of money from plaintiff, believing that he, the said W. S. Morgan, would comply with all of his said promises. The said Morgan then informed this defendant that it would be necessary for her to sign a paper to get said money, and pretended to be in a great hurry, and insisted that defendant sign said paper as quickly as possible, which she did, not knowing at the time the contents of same, she being unable at that time to read said paper; since which time this defendant has been advised and now believes that the paper to which her signature was thus obtained was a transfer, to the said W. S. Morgan, of all her rights, title, and interest in and to her own land on which she then lived and for which she had paid in full. Afterwards, on January 15, 1904, E. W. Eaves, acting as agent for said W. S. Morgan, came to the house of the defendant and informed her that the said Morgan wanted her to sign notes for said sum of money, which'she at first refused to do until she had received a bond for title, as per her agreement with said Morgan, to which the said Eaves replied that if she would sign said notes she could then get the bond for title as promised her by said Morgan. Defendant, still believing that said Morgan would comply with his said promises and that he was acting in good faith, signed said notes, same being the notes sued on in this case. The said Morgan failed and refused to comply with his said promise to give defendant bond for title as agreed, but gave her a bond for title to her own land, containing twenty acres, on which he, the said Morgan, had no claim whatever, except such as were obtained in the fraudulent manner aforesaid. The said Morgan willfully deceived this defendant, in that he promised to have H. H. Chandler, the attorney at law of this defendant, and in whom she had confidence, to prepare all the papers pertaining to said transaction, which he failed to do, but on the contrary took especial pains to prevent the said H. H. Chandler from knowing anything whatever about the transaction, and did, on the day following that on which said notes were signed, leave this State; and remove to New Mexico, or to some other western territory or State. This defendant procured no funds whatever from said plaintiff, but the said Morgan did pay to W. N. Edwards, one of the executors of the estate of J. N. Edwards, deceased, the sum of $346, and claimed to have received from said Edwards titles to said entire tract of land, including the land of this defendant. As soon as defendant learned and ascertained’ the contents of the bond for title, which the said Morgan had given her, she immediately demanded a rescission of the entire contract, tendered him all the money which he had paid out on said land, and demanded of him titles to same, as he agreed to do, all of which he refused, and still refuses to do. Defendant says, that all of said notes were procured by the fraudulent acts and false statements and representations made as aforesaid by the said Morgan; that all of said statements upon which this defendant acted in signing said notes, which she then believed to be true, were false, and known to said Morgan to be false at the time the same were made, and were fraudulently made for the purpose of cheating, swindling, and defrauding this defendant out of the sum of $346; that the acts and statements made as aforesaid by the said Morgan amount to legal fraud, and that said notes are therefore void, all of said notes having been executed by this defendant without any consideration whatever. Defendant therefore asks that she be discharged with cost of suit.” On the trial the plaintiff moved to strike this plea, on the ground that it did not set forth any legal defense t<? the action, which motion the court overruled. The plaintiff excepted to this ruling, and, after verdict in favor of the defendant, to the overruling of a motion for a new trial.