Billings v. G. Doering Grain Co.

• Decision Date: 10 January 1921
• Citation: 47 N.D. 196,181 N.W. 54
• Parties: BILLINGS v. G. DOERING GRAIN CO.
• Court: North Dakota Supreme Court

47 N.D. 196

181 N.W. 54

BILLINGS

v.G. DOERING GRAIN CO.

Supreme Court of North Dakota.

Jan. 10, 1921.

Syllabus by the Court.

In an action against the warehouseman for an accounting, where it appeared that the plaintiff from time to time had delivered wheat to the defendant for storage under an oral contract covering the storage rate and an agreement as to advances, and where storage receipts evidencing a different contract were not issued until long after the delivery of the wheat, and, when issued, were antedated, and where the defendant, pursuant to notice, had closed the storage account, sending the plaintiff a check for an amount which was insufficient to discharge its obligations under the storage tickets, the defendant receiving the check and cashing it without agreeing to accept it in full satisfaction, it is held:

Where there was no dispute as to the terms of the original oral contract of storage, as to the number of bushels or the amount of the cash advances, and the only basis for dispute arose out of antedated tickets providing for a different rate of storage than that previously agreed upon, the acceptance of a check purporting to represent the “balance due” does not amount to an accord and satisfaction of an unliquidated demand.

The tender and acceptance of a check purporting to be for a “balance due” where no condition or statement of the consideration was written in the check, and where there was no prior disagreement or discussion as to the amount actually due, does not establish an agreement on the part of the creditor to receive the check in full satisfaction.

An obligation is not extinguished by an accord and satisfaction under sections 5824 and 5827, Comp. Laws 1913, unless there be an agreement and an acceptance of the consideration thereof by the creditor.

Where the plaintiff brought an action for an accounting for grain stored with the defendant, demanding money judgment, and it appears that the defendant had disposed of the grain soon after its delivery and had closed the storage account, the plaintiff has a right to an adjudication of the proper allowance for storage charges, interest on advances, and the price at which the defendant should be charged for the grain, and in these circumstances the fact that he did not demand the grain is immaterial.

Where the storage tickets gave the plaintiff a right to demand grain at the terminals or terminal bonded warehouse receipts, and where the local cash buying was on the basis of future options, it was inequitable to credit the plaintiff on the basis of the future options instead of the higher cash price at the terminal market, where the defendant did not have the wheat on hand and was not required to buy wheat locally to fulfill its obligations under the storage tickets.

Appeal from District Court, Sheridan County; W. L. Nuessle, Judge.

Action by Frank Billings against the G. Doering Grain Company, a copartnership or sole trader composed of G. Doering. Judgment for plaintiff, and defendant appeals. Affirmed.Aloys Wartner, of Harvey, for appellant.

O. P. Jordal, of New Rockford, for respondent.

BIRDZELL, J.

This action was tried in the court below as an action in accounting. Judgment was entered in favor of the plaintiff for a total sum of $5,032.50. The defendant has appealed, and demands a trial de novo.

Beginning in the fall of 1909, the plaintiff at various times delivered wheat to defendant's grain elevator at Goodrich, N. D. Between that fall and the fall of 1915 he had delivered a total of 8,159 bushels and 55 pounds. At the time of the first deliveries plaintiff entered into an oral agreement with one Chris Doering, who was then managing the elevator, whereby he could store the grain in the elevator for not over 1 1/2 cents per bushel a year, and, in case he needed to draw money on account, it would be advanced to him without interest. Thereafter the defendant advanced money to the plaintiff as follows: September 17, 1910, $2,000; November 25, 1912, $172.50; November 22, 1915, $500.

Some time in 1913, the exact time not appearing in the record, but presumably before the harvest, Chris Doering was succeeded as manager of the elevator by Julius Doering, who continued as manager during the remainder of the period involved in this accounting. Subsequent to the change in management, approximately 40 per cent. of the grain involved in this accounting was delivered to the elevator for storage without any change in the storage contract. No storage tickets were issued for the grain as delivered. On December 20, 1915, however, Julius Doering executed and delivered to the plaintiff by mail three antedated storage tickets. One was dated September 1, 1912, and called for 7,236 bushels 25 pounds No. 1 wheat; one was dated July 17, 1913, and called for 527 bushels 5 pounds No. 1 wheat; and the other was dated December 20, 1915, and called for 396 bushels 25 pounds No. 3 wheat. Each ticket provided for storage at the legal rate, which exceeded the original contract rate, and the ticket for 7,236 bushels 25 pounds had indorsed across the face of it the total amount of cash previously advanced, as follows: “To cash, $2,672.50.” On July 25, 1917, defendant wrote the plaintiff as follows:

“This is to notify you that you must dispose of your stored wheat with us by the 10th of August. As the government is curbing all speculations, they have shut off all trading in futures, and I will have to sell my futures which I have been carrying for you together with the cash grain on hand and can't buy it back.

You will be charged full storage and interest on the money we have advanced you at 10%, same as we are paying, and want you to bring in your weight tickets and storage tickets by above date and oblige

Yours respectfully,

J. R. Doering, Manager.

P. S.-In the event of not hearing from you we will figure same up according to our records and deposit same with the First National Bank here to your credit.”

On the 10th of August defendant wrote the plaintiff again as follows:

“Inclosed find our check for $9,267.70, which represents the balance due you after storage, money advanced and interest on same has been deducted.

Yours respectfully, J. R. Doering.”

No statement of the plaintiff's account accompanied the letter transmitting the check, and the plaintiff testifies that he endeavored without success to see Doering before he cashed the check. The latter, however, testifies that he saw the plaintiff before the check was cashed, and they discussed the matters in dispute between them, and that plaintiff later deposited the check. At a subsequent meeting, however, something was said...