Gordon v. Vermont Loan And Trust Company
| Decision Date | 29 April 1897 |
| Citation | 71 N.W. 556,6 N.D. 454 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Templeton, J.
Action by Fred Gordon against the Vermont Loan and Trust Company. There was a judgment for plaintiff, and defendant appeals.
Reversed.
Reversed, and a new trial ordered.
Burke Corbet, for appellant.
Standish & Barry, for respondents.
This action was brought to recover for certain labor performed by plaintiff in the summer of 1894 in plowing and dragging on the N. E. 1/4 of section 4, township 152, range 56. Whether or not plaintiff can recover in this action depends upon the question of whether or not the person who employed him to perform such services was the agent of the defendant, the Vermont Loan and Trust Company, for such purposes. The decision of this question will only require a consideration of the ruling of the trial court in refusing to direct a verdict for defendant. At the close of plaintiff's testimony, and again after the testimony was all offered, defendant requested the court to direct the jury to return a verdict for defendant on the ground that there was no competent evidence whatever in the case tending to establish such agency. This the court refused to do. In view of such refusal, and of the further fact that the jury returned a verdict for plaintiff, which necessarily involved finding that such agency did exist, we have given the evidence in the case careful and painstaking study. The facts are so far involved, and the circumstances of the case so peculiar, that it becomes necessary for us to state the facts in extenso. In the spring of 1894 one Adare was the owner of the quarter section above described and three other quarter sections of land. He was without means necessary to procure seed for seeding his land. He was also indebted to the defendant in the sum of about $ 1,500, which was entirely unsecured. Just what interest he had in the lands does not appear, but it is stated by both parties that these lands were incumbered. In view of his financial stress, Adare made the following proposition to the defendant: He would transfer all of said lands to the defendant, and would procure tenants for the same, the defendant to furnish the seed necessary to seed the land, and all the share of the crops belonged to the landlord under the leases, and should be the property of the defendant, and when defendant should receive sufficient amount to extinguish Adare's indebtedness to the defendant the lands should be reconveyed to Adare. This proposition the defendant accepted, and the tract of land on which the work was performed was so transferred to the defendant. Subsequently Adare negotiated with one Arne Anderson to lease said land for the season of 1894. As a result of such negotiations a lease was drawn and signed by the defendant, by F. W. Wilder, as its treasurer and manager, and by the said Anderson. This lease provided that Anderson should plow all the land in such quarter section not already plowed, and that he should properly cultivate and crop the entire tract; the defendant to furnish the seed, and pay one-half the twine bill and one-half the threshing bill; the title to the entire crop to be in defendant until division; when divided, each party to have one-half. Soon after the execution of the lease, Adare went out to the land, and was informed by Anderson that there was not the amount of plowed land on said quarter section that Adare had represented. At that time the plaintiff, Gordon, was with Adare. Anderson stated, and it is not disputed, that Adare had represented that 110 acres of said tract was plowed, while in truth only about 55 acres had been plowed. It seems from the evidence that the tenant who had occupied the land the previous year was under obligation to plow back 110 acres, but he had not done so. Adare stated that he would see the former tenant, and have him plow the remainder. Subsequently he informed Anderson that the former tenant would do nothing about it, but that he would have plaintiff, Gordon, plow the 55 acres that was short, and he would settle with Gordon for it. He did employ Gordon to do the plowing, and Gordon did it, and this furnishes a part of the claim sued upon. It seems also that there were yet 50 acres more of unplowed land on the tract, which, under the terms of the lease, Anderson was to plow. Anderson suggested to Adare that he could not plow the land, and could not hire any one to do it, whereupon Adare stated that he would get Gordon to plow that also, and also do certain dragging for Anderson, and he would settle with Gordon, and take a mortgage on Anderson's share of the crop to secure the payment. Gordon was accordingly employed to do this work, and he did it, and that also forms a portion of the claim sued upon. The case turns upon Adare's authority to so employ Gordon. It is uncontroverted that the defendant knew nothing of such employment until the fall following, after Adare had absconded, when plaintiff's bill for said work was presented to defendant. Defendant promptly repudiated any liability for the claim. It is urged that, as Adare, in negotiating the lease, had represented that there was a certain amount already plowed as an inducement to Anderson to make the lease, and as the lease was entered into by Anderson relying upon such statement, it became the duty of defendant to make that representation good, although the lease was silent as to the amount plowed, and although defendant knew nothing of such representations. This may be true, yet defendant had the legal right to refuse to make the representations good, and take the consequences. Plaintiff could not voluntarily make such representations good, and then ask to be paid for so doing. He must show a valid contract by some one authorized to bind defendant.
Over defendant's objection, plaintiff introduced in evidence many things that Adare said and did, the court taking the position that such evidence was competent for the purpose of showing the contract between Gordon and Adare. The...
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