Deering v. Thom

• Decision Date: 09 May 1882
• Citation: 29 Minn. 120
• Parties: WILLIAM DEERING <I>vs.</I> WILLIAM THOM.
• Court: Minnesota Supreme Court

Page 120

29 Minn. 120

WILLIAM DEERINGvs.

WILLIAM THOM.

Supreme Court of Minnesota.

May 9, 1882.

Action by plaintiff in the district court for McLeod county on two promissory notes made by defendant, payable to the order of J. D. Easter & Co., and by the latter sold and assigned to plaintiff. Plaintiff appeals from an order by Macdonald, J., refusing a new trial, after a verdict for defendant.

S. & O. Kipp, for appellant.

John N. Ives, for respondent.

GILFILLAN, C. J.

This action is brought on two instruments executed by defendant to J. D. Easter & Co., and by them transferred to the plaintiff. By one, defendant promised to pay said J. D. Easter & Co., or order, $100, and by the other to pay them $120, with interest, and to pay an attorney's fee if collected by suit. They recited that they were given upon the purchase of a Marsh harvester, on condition that the title or ownership should not pass until the notes were paid; the payees reserving the right to declare the notes due at any time they might deem themselves insecure, and to take possession of the harvester. Within the decisions in Third Nat. Bank v. Armstrong, 25 Minn. 530, and Jones v. Radatz, 27 Minn. 240, the instruments are not negotiable, and consequently the plaintiff took them subject to any defence that would be good against the payees named. The evidence shows that they were given, as recited in them, on a contract for the sale, and for the consideration of a sale, by J. D. Easter & Co., of a Marsh harvester. The contract for the sale was made with defendant through one Schnell, agent for J. D. Easter & Co. At the same time with the contract for sale, and the execution of the instruments sued on, Schnell gave defendant an instrument as follows: "If the Marsh harvester don't work to his satisfaction, he, W. Thom, can return the machine to me, and I will return his notes for the same. A. M. Schnell, agent." It is not disputed that if this was binding on J. D. Easter & Co., defendant had a right to return the machine, if he was reasonably dissatisfied with the manner in which it worked. There was evidence enough to show that he had reason to be dissatisfied and was dissatisfied with it; and he tendered a return, but the agent refused to receive it.

The memorandum signed by Schnell is, standing alone and without anything to explain it, prima facie his contract, and not that of his principal, and the word "agent" affixed to his signature is, prima facie, descriptio personæ, and not...