Gussner v. Hawks
| Decision Date | 23 November 1904 |
| Citation | 101 N.W. 898,13 N.D. 453 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Emmons county, Winchester, J.
Action by George Gussner against Stephen A. Hawks. Judgment for defendant, and plaintiff appeals.
Reversed.
Reversed and remanded.
F. H Register and Newton & Dullam, for appellant.
A portion of a deposition may be read. VanHorn v Smith, 12 N.W. 789. When in the taking of a deposition of a witness the adverse party has appeared and cross-examined, he is entitled to the benefit of the deposition, and may read such portions of it as he chooses without being compelled to read the whole. Converse v Meyer, 14 Neb. 190, 15 N.W. 340; Southwark Ins. Co. v. Knight, 6 Whar. Pa. 327; Geilatly v. Lowry, 6 Bosw. 13 (N.Y.); Calhoun v. Hayes, 8 Watts & S. 127.
The defendant on moving for a directed verdict admits in favor of the plaintiff every fact which the evidence submitted tended to show and all proper inferences therefrom of every fact and inference which the jury might find from the evidence submitted upon which the motion is based. Bohl v. City of Dell Rapids, 15 S.D. 619, 91 N.W. 315; Marshall v. Harney P. T. & M. M. Co. 1 S.D. 350, 47 N.W. 290; Sanford v. Duluth & Dak. Elevator Co. 2 N.D. 6, 48 N.W. 434; Warnken v. Langdon M. Co., 8 N.D. 243, 77 N.W. 1000.
Extraneous evidence is admissible to ascertain the circumstances under which a writing was made, and the subject matter to be regulated by it. Wilson v. Troup, 2 Cowen 229; Summer v. Williams, 8 Mass. 214; Fowle v. Bigelow, 10 Mass. 384; Whallon v. Kaufman, 19 Johns. 104; Prairie School Twp. v. Haseleau, 3 N.D. 328, 55 N.W. 938; Morris v. Railway Co. 21 Minn. 91; Burke v. Ray, 41 N.W. 240.
Where evidence is received without objection at the trial, no objection can be made on appeal. Warder et al. v. Ingli, 46 N.W. 181; Goode v. Smith 13 Cal. 81; Janson v. Brooks, 29 Cal. 214; Becker v. Becker, 45 Ia. 239; Hayne New Trials and Appeals, 398.
An agent or trustee may, even though wrongfully as to his principal or beneficiary, dispose of his principal's property to a stranger acting in good faith and without knowledge of the facts, or of facts imposing inquiry, and for value. But such stranger must be such in fact to the agent's duplicity, and act in entire good faith, or he becomes a confederate in the wrong and cannot be protected, and as to the one not acting in good faith, as the trust property may be traced through any changes in whomsoever hands it may have come, he having notice, or into whatever form it may have been changed, and recover. Dow et al. v. Berry et al., 18 F. 121; May v. LeClaire, 78 U.S. 217, 20 L.Ed. 50; 1 Am. & Eng. Enc. Law, 427; 27 Am. & Eng. Enc. Law, 250; 1 Am. & Eng. Enc. Law, (2d Ed.) 1172.
The doctrine is applied to implied as well as express trusts, to personal property as well as real. 12 F. 124.
Under proper instructions, the question of ownership and right to possession of the cattle in question, and of Hawk's knowledge of the plaintiff's interests and rights therein, should have been submitted to the jury. The questions of fact could not be decided adversely to the plaintiff by directing a verdict for the defendant. Drakely v. Dregg, 75 U.S. 242, 19 L.Ed. 409; Hickman v. Jones, 76 U.S. 197, 19 L.Ed. 551; Barney v. Schneider, 76 U.S. 248, 19 L.Ed. 648; Kelsey v. Oil Co., 45 N.Y. 505; Way v. R. R. Co., 35 Ia. 585.
Where the thing bailed is sold by the bailee, such act determines, ipso facto, the bailee's right of possession, and raises the right of the bailor to immediate possession, and he may maintain trespass, trover or replevin. Swift v. Mosley, 10 Vt. 208; Briggs v. Oakes, 26 Vt. 138; Briggs v. Bennett, 26 Vt. 146.
H. A. Armstrong and Allen & Cochrane, for respondent.
The intention of the parties reduced to writing must be obtained therefrom alone if possible. Harris v. State, 9 S.D. 453, 69 N.W. 825.
Under an executory contract, title cannot pass until delivery was made and all terms of said contract complied with. Nichols & Shepard Co. v. Paulson, 6 N.D. 400; 71 N.W. 136; Cook v. Logan, 7 Iowa 141; 1 Par. on Con. 441; Story on Sales, section 286; Chitty on Con. (10th Am. Ed.) 396; Ober v. Carson, 62 Mo. 209; Addison on Con. (2d Am. Ed.) 225.
The plaintiff brought this action to recover possession of seventy head of cattle, of which he claims to be the absolute owner. The defendant, by his answer, denies the plaintiff's ownership, and alleges ownership in himself. Upon the conclusion of the taking of testimony on behalf of the plaintiff the court directed a verdict for the defendant upon his motion. After the denial of a motion for a new trial judgment of dismissal of the action was entered, and the plaintiff has appealed from such judgment. The assignments of error relate to the exclusion of offered testimony and to the granting of the motion to direct a verdict in defendant's favor. The facts out of which this action grew are as follows: On May 28, 1900, the plaintiff and one Robinson entered into a contract, under which Robinson was to buy some cattle for plaintiff. The evidence of said contract, in part, is the following memorandum, entered into at that time, and known as "Exhibit A":
Soon after the payment to him of said $ 900, Robinson went to Canada to buy the cattle. While in Canada, he wrote Gussner, and advised him of the progress he was making in buying the cattle. At Minneapolis, on July 2d, he telegraphed Gussner that he would be at Braddock, N.D., on the following Thursday. Gussner met him at Braddock on that day to take charge of the cattle. The freight upon the cattle had not been paid, and Robinson told Gussner that the freight must be paid. Gussner tried to pay his pro rata share of it, but the agent would not receive what was due on the Gussner cattle, but demanded the payment of the freight on the whole shipment, which included some fifty-seven head of other cattle, which Robinson had bought for his brother-in-law. Robinson also insisted that Gussner should pay the freight on these other cattle. Robinson finally refused to deliver the cattle to Gussner unless he would pay $ 21 per head for them. While these differences were being talked over and settled, plaintiff came to Bismarck and remained several days. During this time Robinson sold and delivered the steers to the defendant, and plaintiff immediately brought this action to recover their possession. Prior to bringing this action plaintiff tendered to Robinson $ 360, being the amount due Robinson from plaintiff upon the purchase price of seventy head of cattle at $ 18 per head.
This tender was refused.
Upon these facts it is insisted that the direction of a verdict was erroneous. In this contention we concur. Exhibit A is not definite as to the...
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