Citizens' State Bank of Twin Valney v. Moebeck

• Decision Date: 18 July 1919
• Docket Number: No. 21300.,21300.
• Citation: 143 Minn. 291,173 N.W. 853
• Parties: CITIZENS' STATE BANK OF TWIN VALNEY v. MOEBECK (HOLT, Intervener).
• Court: Minnesota Supreme Court

143 Minn. 291

173 N.W. 853

CITIZENS' STATE BANK OF TWIN VALNEY

v.MOEBECK (HOLT, Intervener).

No. 21300.

Supreme Court of Minnesota.

July 18, 1919.

Appeal from District Court, Clay County; William L. Parsons, Judge.

Action by the Citizens' State Bank of Twin Valley against H. L. Moebeck, with intervention by Ole Holt. Verdict and special findings for defendant and intervener, and upon motion the trial court, notwithstanding the verdict, ordered judgment for plaintiff against defendant and intervener, and intervener appeals. Order affirmed.

Syllabus by the Court

Where the vendee in a contract for the purchase of a tract of land undertakes to and does personally examine the same as fully and completely as he chooses, and determines in his own mind the number of acres of tillable land, as well as the number of acres of slough thereon, the same never having been measured, and having communicated his opinion thereof to the seller, who replied thereto that he believed that there were more acres of tillable land, and the vendee then enters into a contract for the purchase of the same, he cannot thereafter be heard to assert that he relied upon the representations of the seller as to the number of acres of tillable land, and thereby avoid the contract upon the ground of fraud. Christian G. Dosland, of Moorhead, for appellant.

F. H. Peterson, of Moorhead, and Oliver Ostensoe, of Twin Valley, for respondent.

QUINN, J.

This is an action to recover the value of certain grain alleged to have been converted by the defendant to his own use and to which plaintiff claims title and the right of possession under a certain chattel mortgage executed by the intervener on August 25, 1913. A verdict and special findings were returned by the jury in favor of both the defendant and intervener. Upon a motion the trial court, notwithstanding the verdict, ordered judgment for the plaintiff and against the defendant for the sum of $414, and against both defendant and intervener for the costs and disbursements. Judgment was so entered, and this appeal is from the judgment.

M. E. and H. H. Dahl are brothers. During the times here in question the former was cashier of the plaintiff bank, and the latter a merchant in the village of Ulen, a few miles distant from Twin Valley. They owned the 120 acres of land in controversy, the record title to which was in M. E. Dahl. The intervener was a farmer residing upon and operating a farm of 640 acres located about four miles from Ulen and adjoining the 120 acres referred to.

[1] On the day in question the intervener and H. H. Dahl met at the village of Ulen. Dahl proposed to sell the 120 acres to Holt, and asked him to go and look it over. Holt, in company with his son, 26 years of age, went and viewed the land. During the afternoon Holt returned to Ulen and talked with Dahl as to the amount of tillable land in the tract. They arrived at a bargain, and Holt remained in town until Dahl arrived from Twin Valley. The price agreed upon was $20 per acre, payable as follows: $400 cash, $400 November 15, 1914, and $400 November 15, 1915, with interest at 6 per cent. per annum, when a deed was to be given subject to a mortgage of $1,200. M. E. Dahl arrived from Twin Valley at about 7 o'clock p. m. He then prepared a contract in accordance with the bargain as above indicated, which he and Mr. Holt signed and acknowledged. No mention was made in the contract of the giving of any notes. Holt had no money with which to make the cash payment. He executed a note for $400, payable to the order of the plaintiff bank on November 15, 1913, with interest at the rate of 10 per cent. per annum. To secure the payment of such note he executed a chattel mortgage upon his undivided one-half of 150 acres of wheat and 250 acres of oats then in shock on the farm where he was living. On August 26th the note was turned over to the bank and entered upon its records as bills receivable, and $400 was placed to the credit of M. E. and H. H. Dahl, subject to check. On August 27, 1913, the mortgage was duly filed for record in the office of the register of deeds of the county.

After threshing the intervener hauled the grain to the defendant's elevator at Ulen. Plaintiff made a demand upon the defendant therefor, which was refused, defendant claiming it in payment of a debt. Plaintiff then proceeded to foreclose its mortgage without obtaining possession of the grain. The usual notice of foreclosure sale was given, which provided for the sale of the grain on December 18, 1913, at public auction to the highest bidder. These matters were set forth in the complaint. It is alleged in the complaint that the grain was sold to the plaintiff at such foreclosure sale for the sum of $427.56 by a constable of the village. Thereafter the plaintiff brought this action against the defendant for the conversion of the grain.

In his answer the defendant admits the incorporation of the plaintiff, and alleges that he has not sufficient knowledge or information to form a belief as to the truth of the other allegations of the complaint, and therefore denies the same.

Ole Holt, the mortgagor, appeared in the action, and filed a complaint in intervention, in which he admits that he made, executed, and delivered the promissory note and chattel mortgage mentioned in the complaint to the plaintiff on the 25th day of August, 1913; alleges that the note was given as part payment of the purchase price of the land; admits that the grain mentioned in the complaint was a portion of that raised by him on the premises where he resided; alleges that he was the owner of the same on December 18, 1913; and denies each and every other allegation in plaintiff's complaint contained. He further alleges, upon information and belief, by way of counterclaim: That on August 25, 1913, the plaintiff bank and M. E. Dahl were the owners of the land in controversy, and that on that day he entered into a contract for a deed whereby the plaintiff and M. E. Dahl agreed to sell and convey to him the real estate in question at the agreed price of $2,400, payable as follows: $400 cash, $400 November 15, 1914, and $400 November 15, 1915, with interest at the rate of 6 per cent. per annum, and the assumption of the mortgage of $1,200 thereon. That at the time of the making of said contract he executed and delivered to the plaintiff his promissory note for $400, which note represents the first payment to be made on the land as mentioned in said contract, together with the chattel...