Andersen v. Resler
| Decision Date | 19 February 1929 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ramsey County, Buttz, J.
Affirmed.
Sinness & Duffy, for appellant.
"If an offer is rejected either by an absolute refusal or by an acceptance conditionally or not identical with the terms of the offer or by the counterproposal, the party making the original offer is relieved from liability on that offer, and the party who has rejected the offer cannot afterward at his own option convert the same offer into an agreement by a subsequent acceptance." 13 C.J. 296.
"Where a debt or demand is liquidated or certain and is due, payment by the debtor and receipt by the creditor of a less sum is not a satisfaction thereof, although the creditor agrees to accept it as such, if there be no release under seal or no new consideration given." 1 C.J. 539.
"It is a general and elementary principle that a mere agreement to accept less than the full amount due is not binding unless based on some new consideration and followed by an acceptance of the sum in full satisfaction." Webster v McLaren, 19 N.D. 751, 123 N.W. 395.
"An agency is effectually revoked when the principal disposes of his interest in the subject-matter of the agency in a manner inconsistent with the authority conferred, as by assignment conveyance, contract for sale, or otherwise." 2 C.J 544.
"Where a person makes an offer and requires or authorizes the offeree either expressly or impliedly to send his answer by post or telegraph and the answer is duly posted or telegraphed, the acceptance is communicated and contract is complete from the moment the letter is mailed or the telegram sent." 13 C.J. 300.
Traynor & Traynor, for respondents.
The plaintiff must come into court not only willing to do equity but with clean hands. The maxim operates so as to exclude aid or deny relief to or from conduct which is unconscionable. The misconduct need not necessarily be of such a nature as would be punishable as a crime or actually fraudulent, or constitute the basis of legal action. 21 C.J. 183, 184.
Arnett v. Smith, 11 N.D. 55, 88 N.W. 1037.
"An obligation is not extinguished by an accord and satisfaction under §§ 5824 and 5827, Comp. Laws 1913, unless there be an agreement and an acceptance of the consideration thereof by the creditor." Billings v. Doering Grain Co. 47 N.D. 196, 181 N.W. 54.
"All defenses not made in the pleadings are considered waived, especially such as are connected with the facts alleged by the plaintiff." 31 C.J. 128.
"A recorded power of attorney to convey certain lands remains in force, as to purchasers in good faith, without notice, from the attorney, although the grantor himself in the meantime conveys the same lands by a deed which remains unrecorded." Alger v. Keith, 44 C.C.A. 371, 105 F. 105; Gratz v. Land Improv. Co. 27 C.C.A. 305, 82 F. 381, 2 C.J. 539.
"The revocation of an offer, however, must ordinarily be communicated to prevent an acceptance from changing it into a binding contract, and it is not communicated to the offeree unless it is actually brought to his knowledge." 13 C.J. 295.
"The fact that the agency is gratuitous does not affect the rule requiring good faith and loyalty on the part of the agent." 2 C.J. 694.
The plaintiff seeks to foreclose a certain real estate mortgage given by Homer Resler and Adele C. Resler, his wife, to one Tiemeyer in November 1919 to secure the payment of $ 6,000 with interest at 6%, due and payable November, 1924. The mortgage was not paid when due and it is the claim of the plaintiff that on September 30th, 1927 the said T. assigned and transferred the mortgage and note to him, that he filed this assignment for record, took the necessary steps to begin foreclosure proceedings, and brought this action.
The defendant Adele C. Resler answered admitting the execution of the note but alleged that before the assignment of the said mortgage to the plaintiff there was an accord and satisfaction entered into between her and the said T. regarding said note and mortgage and it was mutually agreed between them that T. would "accept $ 5,000 in full settlement and in satisfaction of said note and mortgage" and that she "paid the full amount of said $ 5,000 . . . and then and there became the owner of the said promissory note and entitled to the cancellation thereof and the satisfaction of said mortgage referred to in the complaint herein." She alleges also that the plaintiff knew of these dealings before he got the assignment of the mortgage and by fraudulent representations induced T. to give the assignment and stated to T. that the defendant had refused to pay the amount agreed upon.
The defendant Dougherty and the First National Bank of Starkweather answer jointly and to the same effect as the defendant Resler.
The plaintiff replies admitting that there was a proposition and an offer made by T. to the defendant Resler offering to accept from the said Resler "in satisfaction of the note and mortgage mentioned in plaintiff's complaint in the sum of $ 5,000 . . . and that she rejected such offer." The plaintiff further alleges that the defendant R. told him she was not going to take this offer and thereupon he purchased the note and mortgage from T. and received the assignment.
The court made findings of fact and conclusions of law favorable to the defendants and held in effect that Mrs. Resler had accepted the proposition made by T. and had complied with it, had paid her money which had been received and retained by T. through his agent Dougherty, that the plaintiff had fraudulently received an assignment of the mortgage, had deceived and misled Mrs. Resler, and that she was therefore entitled to a cancellation of the mortgage. Plaintiff appeals and demands a trial de novo.
There are four specifications of error to the effect the court erred in the making of nine of the findings of fact; the court erred in the making of four of the conclusions of law; the court erred in ordering judgment for the defendants; and the court erred in not rendering judgment in favor of the plaintiff.
The contested issues of fact are limited in number. One John Tiemeyer, living in Missouri, was the holder of the mortgage involved. The defendant Dougherty was the President of the First National Bank of Starkweather. Homer Resler the husband of the defendant R. was the owner of the land in question and had sold the same under contract to two brothers, co-partners, known as Sorenson Brothers who were to pay the indebtedness as part of the purchase price but failed to do so. T. sent the note to D. and appointed him his agent to collect the same and to look after the matter. In the meantime Homer Resler had died.
Letters which passed between T. and D. (Ex. "K," "N," "O," etc.) show that heretofore an extension of time had been given the Reslers by T. in order that Reslers might sell the land to Sorensons and the latter had agreed to turn over to T. half the crop, and T. was looking to them for the payment of the interest, taxes, etc. In Ex. "K" written as early as March 21, 1927, he said:
Mrs. R. construed this as a discount of $ 1,000 only. On Sept. 17th he again wrote to D. as follows: (Exhibit C.)
This letter was received Sept. 21st but D. says he did not show it to Mrs. R. at that time because the plaintiff said he had talked with her "and . . . that Mrs. Resler said she 'would not take up this offer.'" However he testifies that he arranged a meeting between Mrs. R. and Sorenson Bros. as T. requested. He further testifies Mrs. R came into the bank next day and in conversation said she knew nothing of the offer of Sept. 17th. ...
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