Haspel v. Martin ( 1907 )

Per Curiam,

In the appellant’s statement of the question involved it is assumed that the mortgage was prepared by Carroll, the financial secretary of the building and loan association, mortgagee, and in disposing of the motion for judgment for defendant non obstante veredicto the court took the same view. It is true, as the appellee’s counsel say, that it does not affirmatively appear who actually drew the mortgage. But as Carroll, with whom the defendant’s prior negotiations were had, presented it to the defendant for his execution, it is fairly inferable, in the absence of evidence to the contrary, that Carroll knew its contents; therefore we cannot see that the defense is to be viewed in any less favorable light because it was not affirmatively shown that the mortgage was actually prepared by Carroll: But while it is inferable that he knew the contents of the instrument, it is to be observed that there is no evidence that he made any representation respecting the same to the defendant, or that he did or said anything to induce the defendant to refrain from reading the paper or asking to have it read. This being so, we think the court was right in holding that although the mortgage was drawn for a larger amount than was actually advanced thereon, it was not wholly void, and that the receiver of the association could recover the amount actually advanced to the defendant. This conclusion is so well supported by the opinion of the learned judge below that we deem it unnecessary to add anything further to the discussion.

The judgment is affirmed.