Opinion
Submitted January 20, 1887
Decided March 1, 1887
Amos H. Prescott for appellant.
Smith Steele for respondent.
There was a conflict of evidence as to the circumstances under which the bank took the plaintiff's mortgage. It was claimed, on the part of the plaintiff, that the bank held it as collateral security for certain obligations held by the bank against Dygert, and, therefore, that it had an interest in the security, when it was paid to the bank by the plaintiff. The bank, on the other hand, insisted that it held the mortgage, simply as the custodian of Dygert, for the simple purpose of receiving payments, which might be made thereon by the plaintiff. This issue was sharply contested, and was found by the jury, against the defendant. So, also, there was a conflict of evidence, as to the verbal agreement, alleged by the plaintiff, to have been made by the defendant, through its cashier, with him, to the effect that if the plaintiff would pay the mortgage to the bank, the bank would release its mortgage on the plaintiff's lot, and would also procure for the plaintiff a release of the Rasbach and Myers mortgage. This issue, also, the jury found against the defendant, and in favor of the plaintiff.
The findings of the jury, upon these issues, are not unsupported by evidence, and this court cannot review their decision on the facts. Upon the findings of the jury, there was ample consideration, for the agreement of the bank, to procure a release of the Rasbach and Myers mortgage. It must be assumed that the plaintiff paid his mortgage to the bank before maturity, upon the faith of the promise of the bank. He thereby changed his position, and did what he was under no obligation to do. The agreement was not within the statute of frauds. The undertaking of the bank was original, and not collateral. ( Prime v. Koehler, 77 N.Y. 91, Milks v Rich, 80 id. 269, and cases cited.) Nor was it a contract for the sale of lands, or of any interest in lands. We are also of opinion that the contract, on the part of the bank, was not ultra vires. The bank had an interest in securing payment of its obligations against Dygert. The arrangement with the plaintiff was an ordinary business transaction, and within the usual powers of a business corporation, and, although an agreement by a bank to procure a release of a mortgage held by a third person is not primarily an agreement relating to banking, yet when made to secure payment of a debt due to the bank it cannot be said to be foreign to the purposes, or beyond the powers of the corporation. We think there was no error in the rule of damages. The opinions in the court below are full and quite satisfactory upon all the points involved, and further elaboration is unnecessary.
The judgment should be affirmed.
All concur.
Judgment affirmed.