Bow v. R. & N. Oil Gas Co., Ltd.

CourtUnited States State Supreme Court of Idaho
Writing for the CourtJOHNSON, Commissioner Per Curiam. Per Curiam.
Citation43 Idaho 80,251 P. 295
PartiesJ. F. BOW, Appellant, v. R. & N. OIL GAS CO., LTD., J. C. STICKLER, President, and F. M. WILLMORTH, Secretary; J. C. STICKLER, CHAS.C. TOBIAS, H. C. PRESCOTT, L. R. HUNT, C. M. BAKER, A. W. MCNEIL, E. W. WADDELL, BERT W. REEVES, F. M. WILLMORTH, E. W. STEPHENSON, J. D. KNOWLTON, CHAS. VERHEYEN, H. L. FINLEY, MAX LA LANDE, F. K. ROBINSON, S. H. CHASE, W. H. HOLLENBECK, W. G. HOLLENBECK, J. A. MCROBBIE, S. N. CROUCH, H. L. BROWN, and J. H. PRESCOTT, Respondents
Decision Date30 April 1926

251 P. 295

43 Idaho 80

J. F. BOW, Appellant,
v.

R. & N. OIL GAS CO., LTD., J. C. STICKLER, President, and F. M. WILLMORTH, Secretary; J. C. STICKLER, CHAS.C.
TOBIAS, H. C. PRESCOTT, L. R. HUNT, C. M. BAKER, A. W. MCNEIL, E. W. WADDELL, BERT W. REEVES, F. M. WILLMORTH, E. W. STEPHENSON, J. D. KNOWLTON, CHAS. VERHEYEN, H. L. FINLEY, MAX LA LANDE, F. K. ROBINSON, S. H. CHASE, W. H. HOLLENBECK, W. G. HOLLENBECK, J. A. MCROBBIE, S. N. CROUCH, H. L. BROWN, and J. H. PRESCOTT, Respondents

Supreme Court of Idaho

April 30, 1926


BILLS AND NOTES-VALID DELIVERY-PLEADING-WITNESSES-IMPROPER CROSS-EXAMINATION-UNDERSTANDING AMONG INDORSERS NOT BINDING ON PAYEE-UNAUTHORIZED DELIVERY RATIFIED BY INDORSERS.

1. Absence of valid delivery of note, sued on and in plaintiff's possession, is, under C. S., sec. 5883, matter of affirmative defense, and not available under general issue.

2. Plaintiff having merely testified that note was the one set out in complaint, was owned by him and was wholly unpaid, cross-examining him as to understanding or agreement as to what should be done with it before delivery was improper.

3. Though there was an understanding among indorsers that there should be more indorsers before delivery of note, yet, there being no agreement of payee, it was not effective against payee after delivery of note.

4. Though delivery of note was unauthorized as to indorsers, they, by voluntarily accepting the benefits received by its delivery, with knowledge thereof and without protest, ratified it and assumed the burdens imposed. [43 Idaho 81]

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action on promissory note. Judgment for defendants. Appeal from judgment and order overruling motion for new trial. Reversed as to certain defendants and new trial granted as to others.

Cause reversed and a new trial granted as to the other defendants. Costs awarded to appellant.

T. A. Walters and F. W. Byrd, for Appellant.

That the note was not to be delivered until those who had signed it had had an opportunity to examine it, and withdraw their names was a condition precedent, and evidence thereof was not admissible under a general denial. (Bloom v. Horwitz, 162 N.Y. 120; Carver v. San Joaquin Cigar Co., 16 Cal.App. 761, 118 P. 92; Vanderford, Admx., v. Farmers & Merchants' Nat. Bank, 105 Md. 164, 66 A. 47, 10 L. R. A., N. S., 129; Lewis County v. State Bank, 31 Idaho 244, 170 P. 98; Citizens' State Bank v. Thompson, 30 Idaho 460, 167 P. 22; Mitchell v. Altus State Bank, 32 Okla. 628, 122 P. 666.)

The principal has a reasonable time to ascertain the facts and return what he has received under the contract. Delay beyond a reasonable time amounts to acquiescence and constitutes a ratification. (Northwestern Lumber Co. v. Cornell, 99 Wash. 250, 169 P. 590, L. R. A. 1918C, 220; Depot Realty Syndicate v. Enterprise Brewing Co., 87 Ore. 560, 170 P. 294, 171 P. 233, L. R. A. 1918C, 1001; Clews v. Jamieson, 182 U.S. 461, 21 S.Ct. 845, 45 L.Ed. 1183; 3 Page on Contracts, 3034; Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060, 29 Idaho 473, 160 P. 741.)

It is no defense to the defendants that they signed upon a mere representation or promise that other stockholders of the company would sign the note before it was delivered. ( Mitchell v. Altus State Bank, supra; Sellers v. Territory of Oklahoma, 32 Okla. 147, 121 P. 228; McGregor v. Skinner (Tex. Civ. App.), 47 S.W. 398; German-American Bank v. People's Gas & Elec. Co., 63 Minn. 12, 65 N.W. 90.)

Rhodes & Partridge, Frank Estabrook and Van de Steeg & Breshears, for Respondents.

The court did not err in permitting the defendants to prove that the note in question was not delivered under their denial of the delivery of the same. (Hunter v. First Nat. Bank, 172 Ind. 62, 87 N.E. 734; Wickizer v. Bolin, 22 Ind.App. 1, 53 N.E. 238; Kurth v. Farmers & Merchants' State Bank, 77 Kan. 475, 127 Am. St. 428, 94 P. 798, 15 L. R. A., N. S., 612; Palmer v. Poor, 121 Ind. 135, 22 N.E. 984, 6 L. R. A. 469; Pastene v. Pardini, 135 Cal. 431, 67 P. 681.)

The court did not err in permitting the defendants to introduce evidence showing the conditions upon which the note in question was to be delivered. (Ewell v. Turney, 39 Wash. 615, 81 P. 1047; Gamble v. Riley, 39 Okla. 363, 135 P. 390; Selma Sav. Bank v. Harlan, 167 Iowa 673, 149 N.W. 882; W. J. Lemp Brewing Co. v. Secor, 21 Okla. 537, 96 P. 636; Knight v. Hurlbut, 74 Ill. 133; Belleville Sav. Bank v. Bornman, 124 Ill. 200, 16 N.E. 210; Seattle v. L. H. Griffith Realty & Bank Co., 28 Wash. 605, 68 P. 1036; Mitchell v. Altus State Bank, 32 Okla. 628, 122 P. 666; Lewis County v. State Bank of Peck, 31 Idaho 244, 170 P. 98; Burke v. Dulaney, 153 U.S. 228, 14 S.Ct. 816, 38 L.Ed. 698; Ware v. Allen, 128 U.S. 590, 9 S.Ct. 174, 32 L.Ed. 563; C. S., sec. 5883.)

Stickler did not purport to represent any of the defendants as their agent, except the company, and there is no rule of law by which any of them may be deemed to have ratified his act in delivering the note in question. (Barnett Bros. v. Lynn, 118 Wash. 315, 203 P. 389; Backhaus v. Buells, 43 Ore. 558, 72 P. 976, 73 P. 342; Ilfeld v. Ziegler, 40 Colo. 401, 91 P. 825; Puget Sound Lumber Co. v. Krug, 89 Cal. 237, 20 P. 902; Linn v. Alameda Min. & Mill Co., 17 Idaho 45, 104 P. 668.)

JOHNSON, Commissioner, William A. Lee, C. J., Budge, Givens, JJ., and Taylor, JJ., concurring. Wm. E. Lee, C. J., and T. Bailey Lee, J., took no part.

OPINION

[43 Idaho 82] JOHNSON, Commissioner.

An examination of the record in this case discloses that the R. & N. Oil Gas Co. was an Idaho corporation with its principal place of business at [43 Idaho 83] Nampa, Idaho, formed to promote an oil venture in the state of Wyoming. Like so many of such companies formed for such purposes, it did not prove to be the bonanza expected. Plaintiff, J. F. Bow, had advanced money to the company and held four notes of the company; one for $ 300, one for $ 4,000, one for $ 3,000, and one for $ 700, amounting in all to $ 8,000. He testified that F. M. Willmorth, Burton W. Reeves, H. C. Stickler, H. C. Prescott, Chas. C. Tobias, E. W. Stephenson and J. D. Knowlton were indorsers on the $ 4,000 note; that J. C. Stickler, C. M. Baker, S. H. Chase, William Belcher, J. D. Knowlton, H. C. Prescott, H. W. Waddell, F. M. Willmorth, H. L. Brown, Max A. La Lande, Chas. C. Tobias and L. R. Hunt were indorsers on the $ 3,000 note. All of the indorsers were stockholders in the company and there is no contention that the money involved in this action was not expended by and for the company. The company also owed Annie M. Stickler $ 500, evidenced by a note in that amount. It owed the president of the company, J. C. Stickler, $ 332 for money he had expended for the company, and $ 100 expenses. The various notes, sums and interest amounted to $ 9,350.

A meeting was had in Nampa of a few of the stockholders and directors of the company and from all the evidence as to this meeting it is doubtful if it was a legal meeting of the corporation, but in any event it was arranged with the plaintiff to have him advance enough money to pay off the claims of J. C. Stickler and Mrs. Stickler. The other notes, held by him, being past due, it was agreed that a new note should be executed in favor of plaintiff for $ 9,350, which would cover the amount of the notes held by him as well as the additional amount to be advanced by him covering the Stickler claims against the company. It was also understood that the new note should be circulated among the stockholders and that as many as possible should be secured as indorsers on said $ 9,350 note, and the said note contains the names of twenty-two indorsers. The president of the company, J. C. Stickler, took said $ 9,350 note to plaintiff, turned it over to him and received from plaintiff all the [43 Idaho 84] old notes and $ 932 in cash, of which $ 500 was for Stickler's wife and [251 P. 296] $ 432 and some cents for himself. The old notes were then destroyed by some of the defendants.

Plaintiff has therefore advanced to the company, for the benefit of the stockholders, some nine thousand dollars, and this action is to recover on the $ 9,350 note, no part of which has been paid. The complaint set forth a cause of action against defendants on account of said note. An answer was filed by part of the defendants in which they admit the execution of said note, but deny the delivery of the note to plaintiff. Defendant J. A. McRobbie filed a separate answer in which he also admits the execution of the note but denies that it was delivered to plaintiff or that it was issued for a valuable consideration. The case was tried by a jury that returned a verdict in favor of defendants, respondents here. Plaintiff moved for judgment non obstante veredicto, which was denied by the court and judgment was entered in favor of defendants. A motion for a new trial was denied. This appeal is from the order overruling the motion for a new trial and from the judgment.

In the specifications of error but nine assignments are enumerated. The main question, however, involved in this action is: Was there a valid, legal delivery of the note in question? If there was, defendants are each and all of them liable, and if there was not, they are not liable unless by their acts they ratified the delivery.

Defendants were permitted to introduce evidence, under their denials, without an affirmative defense, to show that there was an understanding between the parties that the note was not to be delivered to plaintiff until it was first presented to all the stockholders of the company in an effort to secure as many of them as possible as indorsers on the note, and that when this was done it should be examined by the directors and if they were satisfied the note should be referred back to the stockholders who had signed, for their...

To continue reading

Request your trial
5 practice notes
  • Colorado Milling and Elevator Co. v. Proctor, 6481
    • United States
    • United States State Supreme Court of Idaho
    • February 11, 1938
    ...promissory note imports consideration, and it is not even necessary to allege consideration in the complaint. (Bow v. R. & N. Oil Gas Co., 43 Idaho 80, 251 P. 295; Fruitland State Bank v. Lauer, 34 Idaho 272, 200 P. 127.) Where defendant pleads failure of consideration he must establish suc......
  • Wilde v. Hansen, 7543
    • United States
    • United States State Supreme Court of Idaho
    • November 1, 1949
    ...was protected by insurance is improper. 9 Blashfield Cyc. of Automobile Law & Practice, § 6291, pp. 748, 749; Bow v. R. & N. Co., 43 Idaho 80, 251 P. 295; Kralick v. Shuttleworth, 49 Idaho 424, 436, 289 P. 74; Burdell v. Nereson, 28 Idaho 129, 135, 152 P. 576. Holden, Chief Justice. Porter,......
  • Prairie Flour Mill Co. v. Farmers' Elevator Co., 4827
    • United States
    • United States State Supreme Court of Idaho
    • November 25, 1927
    ...P. 611; LeClair v. School Dist. No. 28, 74 Mont. 385, 240 P. 391; Ford v. Schall, 114 Ore. 688, 236 P. 745; Bow v. R. & N. Oil Gas Co., 43 Idaho 80, 251 P. 295.) TAYLOR, J. Wm. E. Lee, C. J., and Givens, J., concur. BUDGE, J., T. Bailey Lee, J., Dissenting. OPINION [261 P. 674] TAYLOR, J. T......
  • Gore v. Richard Allen Mining Co., 6792
    • United States
    • United States State Supreme Court of Idaho
    • September 17, 1940
    ...the officer's or agent's authority." See, also, Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; Bow v. R. & N. Oil Gas Co., Ltd., 43 Idaho 80, 251 P. 295; Easton v. Butterfield Livestock Co., 48 Idaho 153, 279 P. 716; Arnold v. National Bank of Waupaca, 126 Wis. 362, 105 N.W. 828, 3 L. R......
  • Request a trial to view additional results
5 cases
  • Colorado Milling and Elevator Co. v. Proctor, 6481
    • United States
    • United States State Supreme Court of Idaho
    • February 11, 1938
    ...promissory note imports consideration, and it is not even necessary to allege consideration in the complaint. (Bow v. R. & N. Oil Gas Co., 43 Idaho 80, 251 P. 295; Fruitland State Bank v. Lauer, 34 Idaho 272, 200 P. 127.) Where defendant pleads failure of consideration he must establish suc......
  • Wilde v. Hansen, 7543
    • United States
    • United States State Supreme Court of Idaho
    • November 1, 1949
    ...was protected by insurance is improper. 9 Blashfield Cyc. of Automobile Law & Practice, § 6291, pp. 748, 749; Bow v. R. & N. Co., 43 Idaho 80, 251 P. 295; Kralick v. Shuttleworth, 49 Idaho 424, 436, 289 P. 74; Burdell v. Nereson, 28 Idaho 129, 135, 152 P. 576. Holden, Chief Justice. Porter,......
  • Prairie Flour Mill Co. v. Farmers' Elevator Co., 4827
    • United States
    • United States State Supreme Court of Idaho
    • November 25, 1927
    ...P. 611; LeClair v. School Dist. No. 28, 74 Mont. 385, 240 P. 391; Ford v. Schall, 114 Ore. 688, 236 P. 745; Bow v. R. & N. Oil Gas Co., 43 Idaho 80, 251 P. 295.) TAYLOR, J. Wm. E. Lee, C. J., and Givens, J., concur. BUDGE, J., T. Bailey Lee, J., Dissenting. OPINION [261 P. 674] TAYLOR, J. T......
  • Gore v. Richard Allen Mining Co., 6792
    • United States
    • United States State Supreme Court of Idaho
    • September 17, 1940
    ...the officer's or agent's authority." See, also, Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; Bow v. R. & N. Oil Gas Co., Ltd., 43 Idaho 80, 251 P. 295; Easton v. Butterfield Livestock Co., 48 Idaho 153, 279 P. 716; Arnold v. National Bank of Waupaca, 126 Wis. 362, 105 N.W. 828, 3 L. R......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT