Dinnie v. Johnson

• Decision Date: 22 November 1898
• Citation: 77 N.W. 612,8 N.D. 153
• Court: North Dakota Supreme Court

77 N.W. 612

8 N.D. 153

JOHN DINNIE, et al., v. O. H. JOHNSON

Supreme Court of North Dakota

November 22, 1898

Appeal from District Court, Pembina County; Sauter, J.

Action by John Dinnie and another against O. H. Johnson. There was a judgment for plaintiffs, and from an order granting a new trial plaintiffs appeal.

Affirmed.

Bangs & Guthrie, for appellants.

W. J Burke, for respondent.

WALLIN J. BARTHOLOMEW, J., concurs. YOUNG, J., did not sit in the case, nor participate in its decision.

OPINION

WALLIN, J.

This action was tried to a jury, and resulted in a verdict for the plaintiffs. A motion to vacate the verdict and for a new trial was made, and was based upon affidavits setting out newly-discovered evidence, and upon a statement of the case settled by the trial court. The defendant's notice of intention to move for a new trial embraced, with other grounds of the motion, the following, namely: First, newly-discovered evidence; second, insufficiency of the evidence to justify the verdict; and, third, errors of law occurring at the trial, and excepted to by the defendant. The only errors of law assigned arose upon exceptions to the instructions given to the jury. The alleged insufficiency of the evidence to justify the verdict, as specified in the statement, is as follows: "First. The defendant specifies, as grounds for vacating the verdict and granting a new trial, insufficiency of the evidence to justify the verdict, for the reasons as follows: (1) The undisputed testimony shows that the brick in controversy were delivered to D. K. Osbourne, and appropriated and used by him, and that the defendant herein had no interest in such brick; (2) for the reason that there is no evidence showing a delivery of any of the brick in controversy to this defendant; (3) for the further reason there is no evidence showing a receipt or acceptance of such brick, or any of them, by this defendant, the undisputed evidence being that there was no written contract or memorandum, and no part payment made; that the contract is within the statute of fraud." The trial court, in its order granting the motion, omitted to disclose the particular ground or grounds upon which the motion was granted; and the record is silent upon this point. When the motion for a new trial came on to be heard in the court below, defendant's counsel appeared, and objected to the hearing of the motion, upon the ground of newly-discovered evidence, and also then moved to strike out the affidavits embracing such evidence. Said motion to strike out the affidavits was predicated upon certain alleged irregularities in practice detailed in the record, which, however, need not be further referred to here, as the case will be disposed of in this Court upon grounds appearing in the statement of the case, and for reasons wholly independent of the facts and matters set forth in said affidavits.

The plaintiffs, at all times in question, were manufacturers of brick at Grand Forks, N. D.; and this action is brought to recover for a quantity of brick which, it is conceded, were, in the summer and fall of 1892, shipped on the cars by plaintiffs, at Grand Forks, to Neche, N. D., and were received at Neche, and there placed in a certain bank building, which building was the property of the Bank of Neche. Defendant, at the time in question, was one of the directors of said bank. It is undisputed that said Bank of Neche entered into a written contract with one D. K. Osbourne, then residing at St. Paul, Minn., whereby the latter agreed to furnish all the material and labor and build said bank building for a stipulated contract price; and that, pursuant thereto, said Osbourne, in the summer and fall of 1892, did build and complete said building under the said contract. The contract between the Bank of Neche and Osbourne was entered into at St. Paul, on the 12th day of April, 1892. It appears that about May 1, 1892, the defendant was at Grand Forks, and there had an interview with the plaintiffs; and the plaintiffs testify that an oral agreement of sale was then and there made between the plaintiffs and defendant, whereby plaintiffs agreed to sell to defendant the brick necessary for said bank building at the price of seven dollars per 1,000, and to deliver the brick on the cars at Grand Forks. This testimony is disputed by the defendant. Defendant testified, in effect, that he never at any time entered into a contract to buy the brick in question. The fact that the brick were shipped to Neche, and were there taken possession of, and placed in the bank building, by the employes of said Osbourne, is conceded; but whether the defendant ever received or accepted the brick was a question vigorously controverted at the trial, and this is one of the decisive issues in the case. No witness testified that the defendant, or any one in his employ, ever took or had manual possession of the brick, or any of them; but the evidence shows that defendant, in whose name the brick were shipped, did, at the request of the station agent at Neche, sign the freight receipts for the brick. Defendant testified, in effect, that he never received nor accepted the brick in any manner. Under this testimony, the question of whether the defendant received or accepted the brick either on the cars, or at Neche, or at all, was clearly a question of fact for the jury. It will be seen later, however, that this question was not submitted to the jury by the trial court.

The instructions of the trial court to the jury, so far as the same are at all material, were as follows: "Gentlemen of the jury, the issue, and practically the only issue, in the case, is the question as to whether there was a contract entered into between these parties at the time they met, in April or May, 1892." Here followed certain instructions and explanations to the jury concerning the statute of frauds, as applied to sales of personal property, and, after giving which, the Court proceeded to charge the jury as follows: "In this action, gentlemen of the jury, the contract, being for more than the sum of $ 50, comes under the provisions of that statute; and the plaintiffs allege that they are entitled to recover of the defendant by reason of the fact that the buyer,--that is, they claim that Mr Johnson accepted and received part of...