Buchanan v. Randall

• Citation: 109 N.W. 513,21 S.D. 44
• Parties: BUCHANAN v. RANDALL.
• Decision Date: 30 October 1906
• Court: Supreme Court of South Dakota

109 N.W. 513

21 S.D. 44

BUCHANAN v. RANDALL.

Supreme Court of South Dakota

October 30, 1906

Appeal from Circuit Court, Miner County.

Action by Alexander G. Buchanan against G. H. Randall. From a judgment for plaintiff, defendant appeals. Affirmed.

Fuller P. J., dissenting.

T. H Null and A. H. Wilson, for appellant.

Wood & Fairbank and Boyce & Warren, for respondent.

HANEY J.

The learned circuit court decided that the defendant was the duly appointed and authorized agent of the plaintiff for the sale of two quarter sections of land in Miner county belonging to the latter; that he sold the land for $4,800, receiving $1,200 in cash, two notes of $900 each secured by first mortgages upon the land, and two notes for $900 each secured by second mortgages upon the land; that the defendant accounted to his principal for $2,800; that the remaining $2,000, consisting of $200 in cash and two notes of $900 each, secured by second mortgages, were converted by the defendant to his own use; and that the plaintiff was entitled to recover $2,000, with interest from May 1, 1900. Judgment having been accordingly entered, and an application for a new trial denied, the defendant appealed.

It is not disputed that Pullen and Baldwin, to whom the land was conveyed by the plaintiff, gave $1,200 in cash, two notes of $900 each secured by first mortgages, and two notes for $900 each secured by second mortgages on the land; that the notes secured by first mortgages were drawn payable to the plaintiff, to whom they were delivered by the defendant; that the notes secured by second mortgages were drawn payable to the defendant, by whom they were assigned to one B. S Harrison; and that the plaintiff received $1,000 in cash less certain commissions and expenses-it being contended by the defendant that he sold the land to Harrison for $2,800, who sold it to Pullen and Baldwin at an advance of $2,000, to whom conveyances were made, and that Harrison alone was interested in and owned the whole of that amount. On the other hand, the plaintiff contends that Harrison was the agent of the defendant; that in fact there was no sale to Harrison, but that the pretended sale to him was a device to avoid the effect of defendant's failure to account for the entire proceeds of the sale. Upon this, the only issue of fact raised by the pleadings, the court found in favor of the plaintiff. The findings of a trial court on disputed questions of fact are always presumptively right, and though, under our statute, not as controlling upon this court as the verdict of a jury, must stand unless the evidence clearly preponderates against them. In re McClelan's Estate (S. D.) 107 N.W. 681. In view of all the circumstances disclosed by the...