Fischer v. Lebedoff
| Decision Date | 04 August 1932 |
| Docket Number | 6040 |
| Citation | 244 N.W. 310,62 N.D. 584 |
| Court | North Dakota Supreme Court |
On Rehearing September 30, 1932, Reported at 62 N.D. 584 at 590.
From a judgment of the District Court of Stutsman County Englert, J., plaintiff appeals.
Remanded for further proceedings.
Carr & Rittgers and A. W. Aylmer, for appellant.
The client is bound according to the ordinary rules of agency by the act of an attorney within the scope of the latter's authority, and the opposite party may safely treat with him on all matters within the scope of his apparent authority until notice to the contrary. 2 R.C.L. 976, 987.
Some courts hold that even in the absence of statutory authority therefor, that an attorney may give a bond of indemnity in his client's name. 2 R.C.L. 995, § 74, note 15.
An alteration to be a material alteration must be one which causes the instrument to speak a language different in legal effect from that which it originally spoke. 2 C.J. 1175 1229, § 99, note 54, 1237, § 108, note 13; Styles v. Scotland & Co. 22 N.D. 469, 134 N.W. 708; Hollerman Mfg. Co. v. Standard Ins. Co. 61 N.D. 637, 239 N.W. 741.
Even if there was a material alteration, if there was no fraud in connection with the change, recovery may be had on the original instrument. 1 R.C.L. 983, 1005; 67 A.L.R. 1151; 51 A.L.R. 1232; L.R.A.1916F, 289.
Where a bond is executed with the intention of complying with the statute or order of court, the terms of the statute or order become a part of the bond by incorporation. 9 C.J. 13; Globe Indem. Co. v. Barnes (Tex.) 288 N.W. 121; Aetna Casualty & Surety Co. v. State (Tex.) 298 S.W. 501.
Ratification of the acts of the agent of defendants will be implied on the part of defendants from the fact that they had the benefits thereof and their agent had full knowledge. 2 C.J. 474.
Principal is bound by the authorized acts of his agent. Seymour v. Oelrichs (Cal.) 106 P. 88; Hagen v. Gresby, 34 N.D. 349, 159 N.W. 3.
The signing of a contract not within the statute is but an evidence of its acceptance as such contract, and the signature is not essential to its validity. Crow v. Carter (Ind.) 31 N.E. 937; 9 C.J. 13.
A contract may be found to exist between the parties although the agreement reduced to writing has not been formally executed by either. Brogden v. Metropolitan R. Co. L.R. 2 App. Cas. 666; Reed v. Coughran (S.D.) 111 N.W. 559; Crow v. Carter (Ind.) 31 N.E. 937.
If the alteration was without fraudulent intent suit may be brought on the original consideration, or on the original contract. 1 R.C.L. 1005; 68 A.L.R. 977.
Where suit by a principal upon the contract is instituted without knowledge of the material facts, it does not amount to an implied rati fication. 2 C.J. 515, § 133(9); 2 C.J. 1258, § 154(84).
It is only an intentional and material alteration made by a party, or with his consent, that extinguishes the executory obligation of the contract. Port Huron Engine & Thresher Co. v. Sherman (S.D.) 85 N.W. 1008.
S. E. Ellsworth, for respondents.
"A material alteration is a change in an instrument by a party thereto, or one entitled thereunder, or one in privity with such person, after the instrument has been signed or fully executed, without the consent of the other party to it." 2 Cyc. 142; First Nat. Bank v. Laughlin, 4 N.D. 391, 61 N.W. 473; J.R. Watkins Medical Co. v. Payne, 47 N.D. 100, 180 N.W. 968; Watkins Co. v. Keeney, 52 N.D. 280, 201 N.W. 833; Dr. Koch Medical Tea Co. v. Poitras, 36 N.D. 144, 161 N.W. 727. An attorney at law, by virtue merely of his employment as such to prosecute an action, has not authority to execute, on behalf of his client, a bond to indemnify the sheriff from the consequence of levying upon property claimed by a stranger, the client residing and being at the place where the events took place, and there being full opportunity for prompt communication between client and attorney. Luce v. Foster (Neb.) 60 N.W. 1027.
Hutchinson, Dist. J. Christianson, Ch. J., and Burr, Birdzell and Nuessle, JJ., concur. Burke, J., did not participate; Hon. Wm. H. Hutchinson, Judge of the Third Judicial District, sitting in his stead.
Sometime before October, 1929, the plaintiff brought an action in the district court against these defendants and the Streeter Milling Company, a corporation which action was tried and judgment entered on October 26th, 1929. The judgment entered provided that the plaintiff have and recover against the Streeter Milling Company, a corporation, the sum of $ 3,803.11. The Court further decreed that a certain fund in the sum of $ 2,000 on deposit in the Citizens National Bank of Streeter, this fund representing the proceeds of a settlement with an insurance company upon a policy covering personal property belonging to the Streeter Milling Company and which had been mortgaged to the plaintiff, be delivered to the plaintiff in part payment of plaintiff's judgment. The judgment and decree further provided that the individual defendants had no lien upon said $ 2,000 fund. The Streeter Milling Company and these defendants perfected an appeal from the judgment. See Fischer v. Streeter Mill. Co. 60 N.D. 362, 234 N.W. 392.
The Supreme Court affirmed plaintiff's judgment against the Streeter Milling Company, and further found that the plaintiff and the individual defendants were each entitled to a further judgment against the Streeter Milling Company in the sum of $ 261.75. The court also found that the $ 2,000 fund paid by the Insurance Company for the loss upon the personal property was an asset of the Streeter Milling Company, and that neither the plaintiff nor the defendants had a lien upon said asset or any special preference to that fund.
At the time the appeal was perfected and on November 1st, 1929, these defendants and each of them, executed and acknowledged an undertaking on appeal, which undertaking contained the following conditions:
"And the above named appellants feeling aggrieved hereby intend to appeal therefrom to the Supreme Court of the State of North Dakota, and to appeal from that portion of the judgment directing the payment of said sum of $ 2,000 over unto said plaintiff or his attorneys and from the whole hereof; and the court having fixed a supersedeas bond in the sum of $ 2,500 exceeding Two Hundred and Fifty Dollars; and also undertake in the sum of Twenty Five Hundred ($ 2500) Dollars which sum is fixed by Order of said Court, said judgment so appealed from, or any part thereof, is affirmed or said appeal is dismissed the said appellants will pay the amount directed as the costs of this appeal, to be paid by the said judgment, and that said defendant and said Bank will make a complete compliance with the terms of said judgment requiring said Bank to turn over the $ 2,000 or the turning over of such part of such amount as to which the said judgment shall be affirmed, if it is affirmed only in part, and all costs which shall be awarded against the said appellants on said appeal, not exceeding the aggregate of the $ 250 costs above mentioned and the sum of $ 2,500 to secure the orders and judgment of the Court to turn over said $ 2,000 insurance money, with interest, deposited in said Bank."
This undertaking was on the 7th day of December, 1929, filed with the clerk of the district court and on that day was served together with notice of appeal...
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