Hyde v. Thompson

• Decision Date: 14 April 1909
• Citation: 120 N.W. 1095,19 N.D. 1
• Court: North Dakota Supreme Court

120 N.W. 1095

19 N.D. 1

W. S. HYDE v. ADOLPH THOMPSON AND THEODORE G. THOMPSON, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF THOMPSON BROS

Supreme Court of North Dakota

April 14, 1909

Appeal from District Court, Griggs county; Burke, J.

Action by W. S. Hyde against Adolph Thompson and Theodore G Thompson.

Judgment for defendants and plaintiff appeals.

Reversed.

Judgment reversed, and new trial ordered.

Lee Combs, for appellant.

Agreement to pay money may be express or implied. Rev. Codes 1905, Sec 5711; Luther v. Hunter, 7 N.D. 544, 75 N.W. 916;

Where one receives property agreeing to convert into cash and pay the owner's debts he is liable upon either express or implied promise to pay. Potts & Potts v. First National Bank, 102 Ala. 286; Kreutz v. Livingston, 15 Cal. 345; Bender v. Wooten, 35 Ark. 31; Davis v Benton, 24 Conn. 556; Whitton v. Barringer, 67 Ill. 551; Johnson v. Collins, 14 Ia. 63; Sterling v. Ryan, 72 Wis. 36; Webb v. Meyer, 64 Hun. 11; 27 Cyc. 857.

If there is a substantial conflict in evidence, case is for jury. Finch v. Park, 80 N.W. 155; Siems v. Bank, 64 N.W. 167; Brand & Co. v. Williams, 13 N.W. 42.

Benjamin Tufte, for respondent.

Assumpsit will not be in favor of mortgage against purchaser at execution sale. Carpenter v. Graham, 3 N.W. 974; Randal v. Higbee, 37 Mich. 41; Hathaway v. Town of Cincinnatus, 62 N.Y. 434.

Authority from relationship of client and attorney cannot be inferred. Isaccs v. Zuggsmith, 103 Pa. 77; Rev. Codes 1905, section 502.

OPINION

FISK, J.

The sole question on this appeal is the correctness of the ruling below in directing a verdict in defendant's favor. Plaintiff seeks to recover for money had and received by defendants to his use. Briefly stated, the facts are that plaintiff had a seed lien upon certain wheat, which defendants had taken into their possession under a chattel mortgage for the purpose of foreclosure, and in addition to the facts necessary to show the validity of plaintiff's lien the complaint alleges an express contract between plaintiff and defendants whereby the latter agreed in consideration of being permitted to foreclose their said mortgage, which covered said wheat and other personal property, to pay to plaintiff the proceeds from the sale of such wheat and that thereafter they foreclosed accordingly, and received on the sale of the wheat the sum of $ 165.64 and refused to turn the same over to plaintiff as promised, although payment thereof had been demanded by him. At the trial plaintiff introduced testimony tending to substantiate the allegations of his complaint in all particulars, and rested his case, whereupon the trial court, on motion of defendant's counsel, directed a verdict in defendant's favor, as above stated.

We are entirely clear that such ruling was erroneous. The reasons urged by respondents' counsel in support of such ruling merit but brief notice. These reasons, as stated in his brief, are the following: "(1) That, where adverse claimants are asserting rights to property covered by their adverse liens, the law will not imply a promise to pay. (2) In the case at bar there is no express promise and no agreement to pay, either by the defendants or any one authorized to enter into any agreement on their behalf. (3) That plaintiff has failed to prove that he had a seed lien upon the grain taken by defendants under their chattel mortgage."

The first proposition advanced is not necessarily involved in the case. Plaintiff does not rely for a recovery solely upon an implied promise on defendant's part to pay to plaintiff the proceeds of such wheat. He relies upon their express promise to do so. But, were it otherwise, we think that under the undisputed evidence, showing the...