Page:North Dakota Reports (vol. 3).pdf/195

, C. J. This action was brought, in claim and delivery, to obtain possession of certain personal property which the National Bank of North Dakota, plaintiff and appellant, claimed as assignee of a chattel mortgagee. The defendant and respondent, Lemke, was the mortgagor. The trial resulted in a verdict and judgment for respondent. The facts are somewhat involved, and the evidence upon some points conflicting. On November 24th, 1888, Lemke and his wife executed to the firm of Whited & Johnson their promissory note for $633.65, drawing interest at 12 per cent. per annum, and due October Ist, 1889. This note was secured by a chattel mortgage covering some-— perhaps all—of the property here in controversy. This note is indorsed October 28th, 1889, with interest to October 1st, 1889, and $180.88 to apply upon the principal. This indorsement was made by Whithed & Johnson. Following this is the indorsement without recourse by said firm, and on April 2nd, 1891, a further payment of $9.50; and under date of April 15th, 1891, there is a memorandum indorsed on the note, showing balance due on April 2nd, 1891, to be $531.65. It is undisputed that Whited & Johnson transferred the note to E. A. Mears, but at just what date docs not appear. It must, however, have been subsequent to October 28th, 1889, and after the date of the maturity of the note. On April 2nd, 1891, Lemke and wife executed a new note for $531.65 to E. A. Mears, due October 1st, 1891, and bearing 12 percent. interest. This note was secured by chattel mortgage covering the same property as the first mortgage. The old note was not delivered to the makers when the new note was taken. Both notes subsequently came into the possession of the appellant bank, of which E. A. Mears has beer president since ifs organization. There was some claim made that the appellant received these notes before the maturity of the note of April 2nd, 1891, but this question was submitted to the jury upon an instruction requested by appellant, and their verdict is conclusive of the fact that appellant received such note after maturity. One of the defenses set up in the answer is that the only consideration for