First Nat. Bank of Fargo v. Minneapolis & N. Elevator Co.
| Decision Date | 03 June 1902 |
| Docket Number | 6731 |
| Citation | 91 N.W. 436,11 N.D. 280 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by the First National Bank of Fargo against the Minneapolis & Northern Elevator Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
Ball Watson & Maclay, for appellant.
The acts of a former general agent within the scope of his original authority will, notwithstanding it revocation continue to bind the principal to those parties who have been and still are dealing with him in good faith in reliance upon his former authority until they have had notice of its revocation. Mechem on Ag'cy, 224; Story on Ag'cy 470; Claflin v. Lenheim, 66 N.Y. 301; McNeilly v. Ins. Co., 66 N.Y. 23; Packer v. Henckley, 122 Mass. 484; Dirersy v. Kellogg, 44 Ill. 114; Lamothe v. Ry. Co., 17 Mo. 204; Ins. Co. v. McCain, 96 U.S. 84. Defendant's request for instruction to the effect that the plaintiff bank owed to defendant the duty of notifying it that Eddy was no longer the bank's agent, if that was a fact, should have been given. Cooper v. Schwartz, 40 Wis. 54. After two trials and an appeal upon the theory that the plaintiff had no interest whatever in the Buckland wheat and the plaintiff's repeated admissions in open court to the same effect, it was an error in the court to submit to the jury the question whether the plaintiff was entitled to a portion of that wheat. Plaintiff was bound by its admissions made in open court. Bingham v. Board, 6 Minn. 136; Leonard v. White, 5 Allen, 177; Ry. v. Shoup, 28 Kan. 394; Bank v. Sprigg, 11 Md. 389. The court erred in charging that the proof against the existence of an actual agency was overwhelming. 11 Enc. Pl. & Pr. 97; 2 Thompson on Trials, 2287. The court erred in excluding the testimony of W. E. Ditmer, taken in deposition by plaintiff in 1897.
Newman, Spalding & Stambaugh, for respondent.
The court did not err in refusing plaintiff's counsel the right to read a portion of the deposition of W. E. Ditmer. Counsel announced that he intended to read only portions of the deposition and proceeded to read separate and detached questions, which he had no right to do. § 5682, Rev. Codes; Scott v. Indianapolis Wagon Works, 48 Ind. 82; Grant v. Penderry, 15 Kan. 184; Bank v. Rhulasal, 67 Ia. 316. It is in the discretion of the court whether it will permit a portion of the deposition to be read without requiring a reading of the whole. Southwark Ins. Co. v. Knight, 6 Horton, 327; Bank v. McSpedon, 15 Wis. 699; Kilbourne v. Jennings, 40 Ia. 473; Prewitt v. Martin, 59 Mo. 325; Norris v. Brunswick, 73 Mo. 256.
The plaintiff seeks to recover damages for the alleged conversion of a quantity of wheat grown by one W. E. Ditmer, in the year 1896, upon certain lands situated in Cass county, and delivered by him in the fall of that year to the defendant at its elevator in Argusville in said county, and upon which it is conceded that plaintiff had a chattel mortgage executed by said Ditmer. The jury returned a verdict for plaintiff for $ 581.46, and in response to the following special question submitted to them by the court: "For how many bushels do you find the plaintiff entitled to recover?"--they answered, "602." The sum awarded in the general verdict, as above stated, was for 602 bushels at 78 1/2 cents per bushel, with interest from the 14th day of August, 1897, the alleged date of the conversion. A motion for new trial was made by defendant upon a statement of the case containing specifications of a number of alleged errors of law which were urged in support of the motion. The motion was denied. Defendant has appealed from the order overruling the same. The errors assigned in appellant's brief, and urged in this court, as grounds for reversing the order appealed from, relate entirely to rulings upon evidence and to the instructions. There is no controversy as to the fact that the wheat in question was delivered by Ditmer to the defendant, and that the plaintiff has an unsatisfied mortgage thereon, duly executed by Ditmer, and of record, as alleged, or as to the fact that, prior to the commencement of this action, plaintiff made demand for the wheat, which demand was not complied with. None of the foregoing facts are challenged by the defendant. On the contrary, it admits that it received the wheat from Ditmer, the mortgagor, and that the same was demanded by the mortgagee, the plaintiff herein, and that it refused, and still refuses, to deliver the same. Defendant denies, however, that it converted the grain in question and, as a complete defense, alleges that it bought and paid for the same in the regular course of business; that payment for said grain was made to certain farm laborers who worked for Ditmer, in 1896, in producing the crop for that year; and that such payments were made under the authority and by the direction of one E. C. Eddy, plaintiff's alleged agent. The defendant further claims that, even if there was a conversion of the grain, which it denies, it did not occur on August 14, 1897, the date at which the jury fixed its value, but that it occurred in the fall of 1896, when the grain was delivered to the defendant and by it shipped out of its elevator, at which time the price of wheat was considerably lower than in the following August.
The facts essential to an understanding of the questions to be considered may be stated as follows: In 1896, Ditmer was indebted to the plaintiff in a considerable sum; a large portion of his indebtedness had existed throughout the years 1893, 1894, and 1895; Ditmer was also indebted to E. C. Eddy during the same period; prior to 1895, Ditmer had given separate crop mortgages to secure his indebtedness to Eddy, and to the plaintiff bank; in 1895 the debts were, in form, consolidated, and the renewal notes and mortgage executed for that year ran to the bank. Eddy was employed by the plaintiff as its agent in the years 1893 and 1894, and had full authority as to directing the sale of the Ditmer grain and the disposition of the proceeds of the same. In 1895 the plaintiff bank entered into a written contract with Eddy, under which he was to give the matter of the disposition of the crops raised by Ditmer under the mortgages executed for that year his personal attention; and he did so. In April, 1896, Eddy conveyed his interest in the Ditmer debt to the bank. His authority to represent the bank was then revoked, and he was thereafter without actual authority to act for the bank in the Ditmer matters in any way whatever. Evidence was introduced by defendant to the effect that in the years 1893, 1894, and 1895, Eddy authorized the defendant's agent at Argusville, one Will Freeman to pay labor claims such as were paid in 1896; and the testimony of said agent is to the effect that he had no knowledge or notice that Eddy's authority was revoked in 1896, and that the payment of the labor claims in said year--and that is the defense interposed in this action--was made under Eddy's direction. The testimony of Eddy is to the effect that he expressly informed Freeman that he had no authority in reference to the crop of 1896, and, further, that he gave no directions as to the disposition of the same, and there is other evidence in the record that Freeman had notice of the revocation of Eddy's agency.
A number of errors assigned on the instructions are so related that they may be conveniently considered together. The following portions of the court's charge are assigned as error: (1) "The defendant does not claim that the farm laborers had a lien upon the 602 bushels, but must rest its defense upon the alleged fact that it was authorized by the agent of the plaintiff bank to thus dispose of such property." (2) "Any previous custom of paying farm laborers, existing between the parties, would not warrant the defendant paying such claims in 1896." (3) It is also urged that error was committed in refusing the following instructions requested by the defendant: (a) "I charge you that if you are satisfied, from the evidence, that it had been the custom of the elevator company during the years 1893, 1894, and 1895, to pay labor claims and other expenses due upon the Ditmer lands, and that the bank had knowledge of the making of such payments and acquiesced in them, you would be authorized in finding that the elevator company was justified in paying the four labor claims in question in this case." (b) "In deciding whether or not the bank used ordinary care under the meaning of the law as I have given it to you, I instruct you that you are entitled to consider what the conduct of an ordinarily careful and prudent person would have been under the same circumstances, and if you find that an ordinarily careful and prudent person occupying the position that the bank occupied, under the circumstances of this case, would have notified Mr. Freeman or the elevator company that Mr. Eddy was no longer its agent, then you are authorized to find that the bank did not use ordinary care."
It is perhaps unnecessary to state that the charge given must be considered as an entirety, and that it is to have a reasonable interpretation when considered in the same connected way in which it was given. "If when so construed, it presents the law fairly and correctly to the jury, in a manner not calculated to mislead them, it will afford no ground for reversing the judgment, although some of its expressions, if standing alone, might be regarded as...
To continue reading
Request your trial