Beidler & Robinson Lumber Company, a Corp. v. Coe Commission Company, a Corporation
| Decision Date | 21 February 1905 |
| Citation | 102 N.W. 880,13 N.D. 639 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by the Beidler & Robinson Lumber Company against The Coe Commission Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
George D. Emery, for appellant.
There must be a concurrence of both the contracting parties of the unlawful purpose or the contract will not be void. If one acts in good faith it is valid. Mohr v. Miesen, 49 N.W. 862; McCarthy v. Weare Com. Co., 91 N.W. 33; Donovan v. Daiber, 82 N.W. 848.
The court erred in granting plaintiff's motion, after verdict, and ordering judgment in its favor, notwithstanding the verdict, and in entering judgment for the plaintiff. It is only where there is no substantial evidence to sustain the verdict and the moving party is hence entitled to a judgment as a matter of law, that the motion can be granted. Kerman v. St. Paul City Ry. Co., 67 N.W. 71; Manning v. City of New Orleans, 60 N.W. 953; Slivitske v. Town of Wien, 67 N.W. 730; Cruikshank v. St. Paul F. & M. Ins. Co., 77 N.W 958; Marguardt v. Hubner, 80 N.W. 617; Netzer v City of Crookston, 68 N.W. 1099; Kreuzer v. Great Northern Ry. Co., 86 N.W. 413; United States Fidelity & Guaranty Co. v. Seigman, 91 N.W. 473; Jacobson v. Johnson, 91 N.W. 465; Isherwood v Jenkins Lbr. Co., 92 N.W. 230; Clark v. Dayton, 92 N.W. 327; Jumiska v. Andrews, 92 N.W. 470; Lauritsen v. Amer. Bridge Co., 92 N.W. 475; Sheely v. Duffy, 61 N.W. 295; Conover v. Knight, 65 N.W. 371.
It was shown that not one single contract was carried by the customer to the date of maturity, nor was delivery intended or demanded by any customer, but the contracts were voluntarily settled by them or by the course of the market before maturity. The fact that no deliveries were made is not evidence that the contracts were wagers and hence void. The evidence showed--without dispute--that it was defendant's custom to deliver the articles contracted for in every case where the contract matured, either by lapse of time or by demand under terms of the contract. Such contracts are valid in law. Van Dusen-Harrington Co. v. Jungeblut, 77 N.W. 970; Donovan v. Daiber, supra.
Where the evidence tends in any way to establish the cause of action or defense it is error to take the case from the jury or direct a verdict. Drakely v. Gregg, 75 U.S. 242, 19 L.Ed. 409; Hickman v. Jones, 76 U.S. 197, 19 L.Ed. 551; Baylis v. Travelers Ins. Co., 113 U.S. 316, 28 L.Ed. 989; Young v. Ege, 65 N.W. 249; Hamburg v. St. Paul F. & M. Ins. Co., 71 N.W. 388; Longley v. Daly, 46 N.W. 247; Stocklam v. Cheeney, 28 N.W. 692; Benham v. Purdy, 4 N.W. 133; Marcott v. Marquette H. & O. Ry. Co., 10 N.W. 53; Houck v. Gue, 46 N.W. 280; Star Wagon Co. v. Matthiessen, 14 N.W. 107; Knapp v. Sioux Falls Nat. Bank, 40 N.W. 587; Sperry v. Etheridge, 19 N.W. 657; Citizens Bank v. Rhutasel, 25 N.W. 261; Fox v. Spring Lake Iron Co., 50 N.W. 872; Jamison v. McFarland, 74 N.W. 1033; Sweet v. Chicago, M. & St. P. Ry. Co., 60 N.W. 77; Suiter v. Park Nat. Bank, 53 N.W. 205; Haugen v. Chicago, M. & St. P. Ry. Co., 53 N.W. 769.
F. W. Ames and Morrill & Engerud, for respondents.
The test of the legitimacy of the transactions herein involved is whether both parties at the time that they were had, contemplated and intended to actually deliver and receive the commodity dealt in, or merely intended to "settle differences" based upon fluctuations of the market. Dows v. Glaspel, 4 N.D. 251, 60 N.W. 60; Irwin v. Wiliar, 110 U.S. 499, 28 L.Ed. 225; Lowe v. Young, 13 N.W. 329; Mohr v. Meisen, 49 N.W. 862; Barnard v. Blackhaus, 6 N.W. 252, 9 N.W. 595; Sprague v. Warren, 41 N.W. 1113; Rogers v. Marriott, 82 N.W. 21.
The court must determine whether the form is genuine or a mere cloak to conceal illegality. Dows v. Glaspel, 4 N.D. 251; Barnard v. Blackhaus, 6 N.W. 252, 9 N.W. 595; Sprague v. Warren, 41 N.W. 1113; Rogers v. Marriott, 82 N.W. 21.
In the face of all the conceded facts and circumstances, and especially the fact that defendant habitually made it a practice to settle differences with its customers and actual deliveries were made only in an infinitesimally small percentage of transactions, the presumption arises that the defendant intended to do just what it did--settle differences. The burden shifts to the defendant to rebut this presumption and show that deliveries were actually intended when the deals were made. Barnard v. Blackhaus, 9 N.W. 595; Sprague v. Warren, 41 N.W. 1113; Rogers v. Marriott, 82 N.W. 21; Board of Trade v. L. A. Kinney Co., 125 F. 72; Sharp v. Stalker, 52 A. 1120.
If there was any difference of opinion as to the conclusion to be drawn from the undisputed evidentiary facts, we next maintain that the defendant is concluded by the trial court's decision on that question. Both parties moved for a directed verdict on the evidence, and thereby requested and consented to a decision by the court. New England Mortgage Co. v. Great Western Elevator Co., 6 N.D. 407; 71 N.W. 130; Stanford v. McGill, 6 N.D. 536; 72 N.W. 938; First M. E. Church v. Fadden, 8 N.D. 152, 77 N.W. 615.
If there was a scintilla of evidence tending to support any other conclusion than the one adopted by the court, it was so extremely slight, that no jury mindful of the law and facts would be warranted in accepting it. Under such circumstances a directed verdict was proper. Rogers v. Marriott, 82 N.W. 21; Woolsey v. C. B. & Q. Ry. Co., 58 N.W. 444; Elliott v. Chicago, M. & St. P. Ry. Co., 150 U.S. 245, 14 S.Ct. 85; Vanderford v. Foster, 65 Cal. 49, 2 P. 736; Jackson v. Haedin, 83 Mo. 175; Deyo v. New Central Railway Co., 34 N.Y. 9, 88 Am. Dec. 418.
If the directed verdict was proper, it follows that under the circumstances of this case, which did not involve any alleged technical failure of proof of some material fact, the court should order judgment notwithstanding the verdict. Richmire v. Andrews & Gage Elev. Co., 11 N.D. 453, 92 N.W. 819; Baxter v. Covenant Mut. Life Ass'n, 83 N.W. 459; Merritt v. Great Northern Ry. Co., 84 N.W. 321.
If the court could properly have directed a verdict, it could also order a judgment. Calteaux v. Mueller, 78 N.W. 1082; Gammon v. Abrams, 10 N.W. 479; Dowagiac Mfg. Co. v. Schroeder, 84 N.W. 14; Baxter v. Covenant Mut. Life Ass'n, 85 N.W. 459; Merritt v. Great Northern Ry. Co., 84 N.W. 321.
When the trial court is of the opinion that a verdict is against a clear preponderance of the evidence, it is its duty to set aside the verdict and order a new trial. It should exercise this discretionary power even though there is a clear conflict of evidence. Pengilly v. J. I. Case Threshing Mach. Co., 11 N.D. 249, 91 N.W. 63; Gull River Lumber Co. v. Osborne-McMillan Elev. Co., 6 N.D. 276, 69 N.W. 691; 14 Enc. Pl. & Pr., p. 770, note 3.
The motion being in the alternative, it is clear that even if the trial court was in error in ordering judgment, a new trial must necessarily follow. Cruikshank v. St. Paul F. & M. Ins. Co., 77 N.W. 958; Kreatz v. St. Cloud School District, 81 N.W. 533; Jones v. Chicago, St. P. M. & O. Ry. Co., 83 N.W. 446; Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299.
The action was for money had and received. The plaintiff claims that the defendant received its money from Carter, who embezzled it. The defendant must restore the money unless it received the same in good faith and for value. If the money was received as the result of an illegal transaction, it was not received in good faith for value. Ervin v. State, 48 N.E. 249; 2 Perry on Trusts, section 828; 1 Perry on Trusts, section 245; Pearce v. Dill, 48 N.E. 788; Pierson v. Fuhrman, 27 P. 1015.
George D. Emery, for appellant in reply.
We insist that the weight of the testimony; the credence to be given to it; the fact of "intent" as disclosed by it; the conclusion to be based upon it as to whether or not the contract was a valid one under the instructions given them, were all proper for the jury to consider and determine, and the court, having refused to direct a verdict and the evidence being conflicting, their conclusion cannot now be disturbed. Broad v. Leck, 48 Ill.App. 390; Ream v. Hamilton, 15 Mo.App. 577.
Where the testimony is such that reasonable minds may draw different conclusions from it, the question is eminently one for the jury. Standard L. &. A. Co. v. Thornton, 100 F. 582; C. &. G. W. Ry. Co. v. Price, 97 F. 423; Cruikshank v. Bank, 26 F. 584; Young v. Ege, 65 N.W. 249.
Where the defendant pleads and gives evidence tending to prove a complete defense, it is error for the court to take the case from the jury. Hamberg v. St. Paul F. & M. Ins. Co., 71 N.W. 388.
A motion for a directed verdict asks the court to decide that there is no evidence to support a contrary contention. If made by the plaintiff and denied, it must be because the court concludes that there is some evidence in support of the claims of the defendant. Then, after such motion and denial, if the defendant moves for a directed verdict in his favor on the ground that there is no evidence to establish the claim of the plaintiff, how does he thereby consent that the court may decide upon the weight of any evidence that may be in the case, whose motion it has just denied? Rogers v. Marriott, 82 N.W. 21; Press et al. v. Duncan, 69 N.W. 543; Cunningham v. Reichart, 72 N.W. 490; New England, Mortgage Security Co., v. Great Northern Elevator Co., 71 N.W. 130, 6 N.D. 407.
YOUNG, J. MORGAN, J., concurs. ENGERUD, J., took no part in the decision of this case.
Plaintiff brings this action to recover the sum of $ 8,667.71, which it claims its agent, one F. H. Carter, appropriated from its...
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