49 N.W. 55 (Minn. 1891), Stein v. Swensen

Citation:49 N.W. 55, 46 Minn. 360
Opinion Judge:Gilfillan, C. J.
Party Name:Lewis Stein v. Peter P. Swensen, Sheriff, and another
Attorney:Selden Bacon, for appellants. S. Meyers, for respondent.
Case Date:June 20, 1891
Court:Supreme Court of Minnesota
 
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49 N.W. 55 (Minn. 1891)

46 Minn. 360

Lewis Stein

v.

Peter P. Swensen, Sheriff, and another

Supreme Court of Minnesota

June 20, 1891

Action brought in the district court for Hennepin county against the defendant Swensen, sheriff of the county, and David W. Knowlton, to recover for the conversion of three carriages, claimed by plaintiff under two chattel mortgages from H. C. Vaughn & Co. Defence, that the property was taken by the defendant Swensen, as sheriff of the county, by virtue of a writ of attachment in an action brought against H. C. Vaughn & Co. by the National Bank of Commerce; that on September 15, 1888, (three days after the levy,) the debtors made an assignment in insolvency to defendant David W. Knowlton, who duly elected to retain the attachment and levy for the benefit of all the creditors, and filed notice of such intention, and on November 7, 1888, was substituted as plaintiff in the attachment suit for the purpose of enforcing the attachment, and on October 15, 1888, as assignee, received the property from the sheriff. The answer further alleges that the mortgages were void for usury. After the decision of a former appeal, (44 Minn. 218,) granting a new trial after verdict for defendants, the action was again tried, before Smith, J., and plaintiff had a verdict of $ 986.90. The defendants appeal from an order refusing a new trial.

Order reversed.

Selden Bacon, for appellants.

S. Meyers, for respondent.

OPINION

[46 Minn. 361] Gilfillan, C. J.

This case was here once before on an appeal from an order denying a new trial after a verdict for defendants, and is reported in 44 Minn. 218, (46 N.W. 360.) Reference is made to the opinion therein reported for a general statement of the case. After a second trial, ending in a verdict for the plaintiff, this appeal is brought from an order denying defendants' motion for a new trial. The assignments of error are very numerous, but they may be referred to comparatively few propositions.

The loans were made in behalf of plaintiff, a non-resident of the state, by his agent, Henry Stein, doing business in Minneapolis, to Vaughn & Co., the assignors in insolvency of one of the defendants. The authority of Henry Stein to act in behalf of the plaintiff was shown by a letter of attorney, from which it appears that the former was vested with full power,

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without any restriction, to loan and collect money for plaintiff; in other words, to carry on the general business [46 Minn. 362] of a money-lender. Henry Stein was a general agent, in the sense that all his acts, within the general scope of his powers in that business, are presumed to be the acts of the plaintiff. The two loans in question were, respectively, for $ 500 and $ 300, each for one month, the full interest which parties may stipulate being reserved in each note. There is no dispute that Vaughn & Co., at the times of making the loans, also paid the agent in the case of the first loan $ 15...

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