Fletcher v. Nelson

• Decision Date: 10 November 1896
• Citation: 69 N.W. 53,6 N.D. 94
• Parties: FLETCHER et al. v. NELSON.
• Court: North Dakota Supreme Court

6 N.D. 94

69 N.W. 53

FLETCHER et al.

v.NELSON.

Supreme Court of North Dakota.

Nov. 10, 1896.

Syllabus by the Court.

1. A notice of motion for new trial, otherwise in proper form, which contains a notice that the motion will be made upon the minutes of the court, and upon a ground specifically stated in the notice, will operate as a notice of intention, as well as a notice of motion. Held, further, where the objection is made for the first time in this court that no notice of intention was ever served, that such objection comes too late. The objection is waived by not being made in the trial court.

2. Where all the terms of a sale of personal property which has been identified are agreed upon, and embodied in a writing signed and delivered, such delivery of the writing operates to pass title to the purchaser. Accordingly, held, in the case of a sale of a mare, when the writing so made and delivered contained a stipulation that the sale was made without any warranty, that an oral warranty of quality, made an hour after the delivery of the writing, and made only as an inducement to the purchaser to accept and keep the mare, could not be enforced as a contract, such oral warranty being without consideration.

3. An agent, having authority to sell particular property, has implied power to warrant the goods sold; but, after consummating a sale, the authority of the agent is exhausted. He cannot, by a subsequent agreement, made without the consent of his principal, rescind the sale, and then enter into a new contract of sale to the original purchaser.

4. In claim and delivery, when the value of the plaintiff's interest in the property is not found in the verdict, but such value is not controverted, and may be ascertained by mere computation made upon the pleading, the verdict may be amended by the court, and a judgment may be entered based upon the amended verdict.

5. Where facts are not controverted, or are admitted in the pleadings, it is the province of the court to direct a verdict; and this is the rule in claim and delivery cases, as well as other cases of a civil nature.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Claim and delivery by Fletcher Bros. against Edward M. Nelson. There was a verdict for plaintiffs, and from an order setting the same aside, and granting a new trial, they appeal. Reversed, with directions.

McCumber & Bogart, for appellants. W. E. Purcell, for respondent.

WALLIN, C. J.

This action was brought to recover the possession of certain personal property, to wit, two mares, one colt, and a couple of oxen. Plaintiffs claim the right of possession under a chattel mortgage covering the property, which was executed and delivered by the defendant to secure a promissory note for $115. By his answer defendant admits the execution and delivery of the note and mortgage. Further answering, the defendant alleges that the note was given for the purchase price of one of the mares; that said mare was sold with a warranty to the defendant as to her age, soundness, trueness in harness, etc; that said warranty was false, and broken, and that the defendant was damaged thereby; and that the mare was not worth the said purchase price of $115, and was not worth to exceed $25. Upon these issues a jury trial was had. We quote from the abstract: “Both parties having rested, the plaintiff moved the court to instruct the jury to find a verdict for the plaintiffs and against the defendant, that plaintiffs are entitled to the immediate possession of the property described in the complaint, and that the value of said plaintiffs' special interest in the said property is the amount of the principal and interest due upon the said note, and that the jury find the value of the property described in the complaint.” Said motion was overruled, and the plaintiffs excepted. The cause was submitted to the jury with instructions to find a verdict, for the plaintiffs, that the plaintiffs were entitled to the possession of the property described in the complaint; to also find, in their verdict, the value of the property, and also the amount of the plaintiffs' special interest in the property. And the court further instructed the jury, in substance, that the value of the special interest of the plaintiffs in the property would be the amount due upon their note, less the amount of damages the defendant had suffered by reason of the breach of warranty, in case the jury found that there was a warranty made; and that the defendant's damages, in case they found a breach of warranty, would be the difference between what the property purchased would have been worth if it had been as warranted, and what it was actually worth in the condition that it was in at the time of purchase. The jury, after being out, reported that they could not agree upon the matter of damages. The attorney for the plaintiffs then stated to the court: “Before the jury are discharged, I would ask the court, in view of the statement of the juror that the question that they cannot agree on is one of damages, and the court having instructed the jury to return a verdict for the plaintiffs for the possession of the property, that the court withdraw the question from the jury as to the plaintiffs' special interest in the property, and instruct the jury to return a verdict for the plaintiffs for the property described in the complaint, and to find its value. By the Court: Gentlemen of the Jury: I instruct you again to bring in a verdict in this case in favor of the plaintiffs, and in addition you will find the value of the property. This question of damages you need not consider further. You will find a verdict for the plaintiffs for the return of the property, and find also the value of the property.” Thereupon the jury retired again, and subsequently returned into court and returned their verdict as follows: “We, the jury in the above-entitled action, find for the plaintiffs on all the issues therein; that the plaintiffs are entitled to the immediate possession of the property described in the complaint herein; that the value of the plaintiffs' special interest in said property is ------- dollars; and that the value of the property described in the complaint is two hundred and thirty dollars,”-which verdict was, on the 5th day of January, 1895, duly received by the court and filed in said action.

No further proceedings were taken in said action by either of said parties until the 1st day of April, 1896, when the attorneys for the plaintiffs served upon the attorneys for defendant a notice of motion for an order directing the entry of judgment, in favor of plaintiffs and against said defendant, upon the verdict rendered in said action, for the recovery of the property described in plaintiffs' complaint or the amount due plaintiffs on the note described therein, in case delivery of the property cannot be had. Thereafter, and before said motion was argued before the court, the attorneys for defendant served notice upon plaintiffs' attorneys for a new trial in said action, returnable on the 21st day of April, 1896. At said last-mentioned time both of the aforesaid motions were argued, and, after hearing the arguments on said motions, the court made its order as follows: “The above-entitled cause having been brought on to be heard on the 22d day of April, 1896, on motion made by plaintiffs for judgment on the verdict, and on motion made by the defendant to vacate and set aside said verdict, and to grant the defendant a new trial in said cause, Messrs. McCumber & Bogart appearing for the plaintiffs and W. E. Purcell, Esq., appearing for the defendant, and the court having heard the arguments for the respective parties on said motions, and being duly advised in the premises, it is hereby ordered that the motion made by the plaintiffs for judgment on the verdict rendered at the January, 1895, term of this court, in said cause, be, and it is hereby, in all things denied. Further ordered that the motion of the defendant that said verdict be set aside, and a new trial of said action be granted, be, and it is hereby, granted, and said verdict is hereby vacated and set aside, and a new trial of said action is granted and hereby ordered.” Which said order was served upon the attorneys for the plaintiffs on the 1st day of May, 1896. Upon the coming in of the verdict, the record reads as follows: “The defendant excepts to the verdict, and asks a stay of proceedings of sixty days, in which time to make a motion for a new trial, prepare a bill of exceptions, or statement of the case. The stay is granted.” At the same time the clerk made the following entry in the minutes of the court: “Come again the parties, by their counsel, and thereupon the defendant's counsel moved the court to set aside the verdict of the jury, and thereupon the court decided to reserve the decision now.” The notice of the motion for a new trial, which was served on plaintiffs' counsel, and is referred to above, contained, among other things, the following language: “Said motion will be made upon the minutes of the court, and the pleadings and proceedings herein, and upon the further ground that the court erred in instructing the jury to return a verdict,” etc.

In this court plaintiffs' counsel makes the preliminary point that the trial court erred in granting the new trial for two reasons: First, that a notice of intention to move for a new trial was never served; second, that the order directing a verdict for plaintiffs was not objected to, and no exception thereto was taken. We think both of these grounds are untenable. The record, as stipulated and completed, shows that counsel for defendant did both object and except to the order of the trial court directing a verdict. We quite agree with counsel for the plaintiffs that the stay order and the entry in the minutes are unavailing as a notice of intention to move for a new trial. A notice of intention must be served on the...