Gilman v. Township of Gilby
| Decision Date | 02 November 1899 |
| Docket Number | 6731 |
| Citation | 80 N.W. 889,8 N.D. 627 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Fisk, J.
Action by F. A. Gilman against the Township of Gilby. Judgment for defendant, and plaintiff appeals.
Affirmed.
McDermont & Mayer, for appellant.
The Western Wheeled Scraper Company treated their transaction with Lytle & Martine as a sale and attached the order in suit by garnishment proceeding, as the property of their agents. This garnishment proceeding is entirely inconsistent with its present claim of title and ownership. Moline Plow Co. v Rodgers, 37 N.W. 111. The judgment roll in the case of the Western Wheeled Scraper Company against Lytle & Martine was admissible in evidence. It is within the exception to the rule that a judgment binds only parties and privies, viz: a former judgment establishing rights and relations between the parties to it, is admissible against a person not a party or privy for the purpose of proving that the plaintiff in the former judgment sustained to the defendant therein the relation established thereby. Railroad Equipment Co. v Blair, 39 N.E. 962; Van Fleet's Former Adjudications, 910-922. Also admissible for the purpose of establishing an estoppel in pais. 2 Van Fleet's Former Adjudications, 914-915. The road machines for which the Gilby Township order was given were sold to Lytle & Martine, and the purchase price of the same reduced to judgment. The scraper company had two methods of redress so inconsistent that the assertion of one involved the negation of the other. Bank of Beloit v. Beal, 34 N.Y. App. 473; National Bank of Illinois v. National Bank of Emporia, 45 P. 79; Thompson v. Howard, 31 Mich 309; Riley v. Albany Savings Bank, 43 N.Y. 520; Kearney, etc., Co. v. Ry. Co., 66 N.W. 159; Compton v. Beach, 25 A. 446; 4 L. R. A. 145; Nield v. Burton, 22 N.W. 906; Fowler v. Bowery Sav. Bank, 113 N.Y. 450; First Nat. Bank v McKinney, 66 N.W. 280; Bowen v. Mandeville, 95 N.Y. 240; 36 L. R. A. 193; Spalding v. Page, 1 Saw. 702; Bank v. Adams, 20 How. Pr. 335, 7 Bosw. 316; Biglow on Estoppel, 562; Pomeroy's Remedies, 110-493, 567-573; Stuart v. Hayden, 36 U. S. App. 462, 72 F. 402; Moline Plow Co. v. Rodgers, 37 P. 110; 7 Enc. Pl. & Pr. 364.
Cochrane & Corliss, for respondent.
The judgment roll from the Minnesota court in the action against Lytle & Martine was offered in evidence for the sole purpose of showing that the Scraper Company had by virtue of judicial proceedings in Minnesota waived or lost its title to the warrant in suit. It was not offered or received to prove an alleged copy of the contract attached as an exhibit to the complaint in that judgment roll. That judgment is not evidence against this defendant with respect to the existence or terms of a written contract between the Scraper Company and Lytle & Martine. Tierney v. Phoenix Ins. Co., 4 N.D. 565-568, 62 N.W. 642. Even under the written instrument Lytle & Martine did not become the owners of the property shipped them. Metropolitan Nat. Bank v. Benedict Co., 74 Fed Rep. 182; Burton v. Goodspeed, 69 Ill. 237; Norton v. Mellick, 97 Ia. 564; Walker v. Butterick, 105 Mass. 237; National Cordage Co. v. Sims, 44 Neb. 148; Sturm v. Baker, 150 U.S. 312, 14 S. C. R. 99; Lenz v. Harrison, 148 Ill. 598; Balderstone v. National Rubber Co., 18 R. I. 338, 27 A. 507; Barnes Safe & Lock Co. v. Blach Bros., 38 W.Va. 158, 18 S.E. 482; National Bank v. Goodyear, 90 Ga. 711, 16 S.E. 962; Melburn Mfg. Co. v. Peak, 89 Tex. 209; Moline Plow Co. v. Rodgers, 53 Kan. 743. The recovery of judgment in the Minnesota court, in an action for conversion, did not divest the Scraper Company of its title to the property converted or vest the title in the defendant. Until that judgment is paid and satisfied this defense is competent. Miller v. Hyde, 161 Mass. 472; 42 Am. St. Rep. 434; Atwater v. Tupper, 45 Conn. 144; Turner v. Brock, 6 Heisk. 50; Lovejoy v. Murray, 3 Wall. 1; Brimsmead v. Harrison, L. R. 7 C. P. 547; Ex parte Drake, 5 Ch. D. 866; Tolman Co. v. Waite, 78 N.W. 124; Mitchell v. Shaw, 53 Mo.App. 652; Freeman on Judgments, § 237; 1 Greenl. Ev. § 533, n.; 15 Am. & Eng. Enc. L. 347. The Minnesota judgment cannot operate as an estoppel, because it does not appear upon the face of the judgment record that that court ever adjudicated against the company and in favor of Lytle & Martine as to the ownership of the order in question. Fahey v. Esterly Machine Co., 3 N.D. 222, 55 N.W. 580. The warrant in suit was not a negotiable instrument and therefore the plaintiff obtained no better title thereto than Lytle & Martine from whom he purchased. Goose River Bank v. School Township, 1 N.D. 26; Goodwin v. Town, 28 A. 877-885; West Fidelity L. & S. Co. v. Olympia, 52 P. 1015; 15 Am. & Eng. Enc. L. 1208; Merrill v. Monticello, 138 U.S. 673.
This is an action to recover upon a township warrant issued by the defendant township in payment for two road machines purchased by it from the Western Wheeled Scraper Company through the latter's agents. The warrant bears date June 26, 1893, is for $ 500, and is payable on its face to Lytle & Martine, who were then the company's agents for the sale of scrapers in this state. The complaint alleges that the warrant in question was transferred for value, and by proper indorsements, first by the payees to William G. Martine, then by the latter to the plaintiff, and that it is unpaid. The defense is that this warrant belonged to the Western Wheeled Scraper Company, and not to its agents, and that the debt represented by it has been paid, and in this connection the answer alleges that it was issued for the purpose of paying that company for the two scrapers purchased from it by the defendant, and that said warrant was made payable to Lytle & Martine solely in reliance upon their representations that they had authority from their principal to receive payment in that form. Further, that in September, 1895, thereafter, the defendant, acting upon assurances that said warrant had been lost, issued another warrant in lieu thereof for the same amount, but payable to the Western Wheeled Scraper Company, and that this last warrant has been paid. The case was tried in the District Court without a jury, and a judgment was ordered and entered dismissing the action. Plaintiff brings the case here for trial anew.
The facts from which the case is to be determined are practically undisputed. That defendant has paid for the scrapers, as alleged, is conceded. It is also clearly established that the title to all scrapers consigned to Lytle & Martine for sale as well as the gross proceeds of such sales, in whatever form they might be, was in the Western Wheeled Scraper Company. In fact, it is not claimed by appellant that the transaction between the company and its agents amounted to a sale to the latter, or that Lytle & Martine ever had title to the scrapers sold to the defendant. Such a position would not be tenable under such a contract. Metropolitan Nat. Bank v. Benedict Co., 20 C.C.A. 377, 74 F. 182; Norton v. Melick, 97 Iowa 564, 66 N.W. 780; Walker v. Butterick, 105 Mass. 237; Sturm v. Boker, 150 U.S. 312, 14 S.Ct. 99, 37 L.Ed. 1093. It is clear, too, that the warrant in suit is not negotiable in the sense of cutting off defenses which might have been made against the original payee. Goose River Bank v. Willow Lake School Twp., 1 N.D. 26, 44 N.W. 1002. The plaintiff has then only the rights of Lytle & Martine. It has been shown that they had no title either to the scrapers sold or to the proceeds of sales, and hence did not own this warrant although it was taken in their name; and consequently they could transfer no title to it. But it is plaintiff's contention that the company waived and lost its title to both the scrapers and proceeds by taking a judgment against such agents for their value, and that by so doing "the company elected to repudiate any interest or ownership that it may have had in them prior thereto, and forever estopped itself from subsequently claiming them as its own." Upon this contention rests plaintiff's whole case,. In support of this alleged waiver the plaintiff offered in evidence in rebuttal the judgment roll in a case entitled "Western Wheeled Scraper Company vs. James E. Lytle and W. G. Martine and Lytle & Martine," tried in the District Court of Hennepin county, Minn. This was objected to by defendant's counsel as "incompetent, irrelevant, and immaterial, and not being a judgment between the parties to this action. Pursuant to the requirements of section 5630, Rev. Codes, chapter 5 of the Laws of 1897, under which the case was tried, the same was received into the record and is before us upon the same objection. We find no ruling upon the objection, but it is evident that the trial...
To continue reading
Request your trial