Jacobson v. Mohall Telephone Co.

• Decision Date: 05 April 1916
• Docket Number: 1915
• Citation: Jacobson v. Mohall Telephone Co., 157 N.W. 1033, 34 N.D. 213 (N.D. 1916)
• Court: North Dakota Supreme Court

157 N.W. 1033

34 N.D. 213

L. O. JACOBSON v. MOHALL TELEPHONE COMPANY, a Corporation

No. 1915

Supreme Court of North Dakota

April 5, 1916

Action to recover money claimed to have been paid on account of a mistake of law.

Appeal from the District Court of Renville County, Leighton, J Judgment for defendant. Plaintiff appeals.

Affirmed.

F. B Lambert, for appellant.

The contract and bond in this case bound plaintiff to make good all defalcations of the office, by whomsoever made.

"The control of papers as securities implies such a possession thereof under a delivery to the holder, and such acceptance as will perfect the security." Bank of Monroe v Gifford, 79 Iowa 300, 44 N.W. 558; Sencerbox v. First Nat. Bank, 14 Idaho 95, 93 P. 369.

"A conveyance with a power to hold and control the property involves the custody and possession of the trust property both real and personal." Ure v. Ure, 185 Ill. 216, 56 N.E. 1087; Rev. Codes 1905, § 5347, Comp. Laws 1913, § 5903.

"A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates." Code, §§ 5351-5353.

"Particular clauses of a contract are subordinate to those of general intent." Code, § 5354.

"A contract should be so construed as to carry out the intention of the parties, even though it is necessary to depart from the strict letter." Conn v. Lewis, 5 Litt. (Ky.) 66; Hildrith v. Forrest, 4 J. J. Marsh. 217; Shultz v. Johnson, 5 B. Mon. 497; Ross v. Garlick, 10 Rob. (La.) 365; Marcotte v. Coco, 12 Rob. (La.) 167; Salmon Falls Mfg. Co. v. Portsmouth Co. 46 N.H. 249; Hunter v. Miller, 6 B. Mon. 612; Clay v. Ballard, 9 Rob. (La.) 308, 41 Am. Dec. 328; Coghlan v. Stetson (C. C.) 22 Blatchf. 88, 19 F. 727; Williams v. Glover, 66 Ala. 189; Robinson v. Stow, 39 Ill. 568; Franklin L. Ins. Co. v. Wallace, 93 Ind. 7; Wagner v. Kenner, 2 Rob. (La.) 120; Erwin v. Greene, 5 Rob. (La.) 70; Kinney v. Hamilton County, 8 Ohio C. C. 433, 4 Ohio C. D. 448; Royalton v. Royalton & W. Turnp. Co. 14 Vt. 311; The Ada, 2 Ware, 408, Fed. Cas. No. 38; Livingston v. Arrington, 28 Ala. 424; Barney v. Newcomb, 9 Cush. 46; Noonan v. Bradley, 9 Wall. 394, 19 L.Ed. 757; Otis v. United States, 20 Ct. Cl. 315; Norton v. Brophy, 56 Ill.App. 661; Donahoe v. Kettell, 1 Cliff. 135, Fed. Cas. No. 3,980; Chase v. Bradley, 26 Me. 531; 11 Century Dig. § 746, Contracts, col. 737, and cases cited; Pillow v. Brown, 26 Ark. 240; Bradley v. Marshall, 54 Ill. 173; Bobbitt v. Liverpool & L. & G. Ins. Co. 66 N.C. 70, 8 Am. Rep. 494; Smith v. Turpin, 20 Ohio St. 478; Byrne v. Marshall, 44 Ala. 355; Vaugine v. Taylor, 18 Ark. 65; Doe ex dem. Caillaret v. Bernard, 7 Smedes & M. 319; Munson v. Osborn, 10 Ill.App. 508; Morss v. Salisbury, 48 N.Y. 636.

"A contract will, where there is a doubt as to its true meaning, be construed most strongly against the party responsible for its language." Christian v. First Nat. Bank, 84 C. C. A. 53, 155 F. 705.

Sureties are said to be favorites of the law, and a contract of suretyship must be strictly construed to impose upon the surety only those burdens within its terms. 32 Cyc. 73; Jenkins v. Phillips, 18 Ind.App. 562, 48 N.E. 651; Rev. Codes 1905, § 5346, Comp. Laws 1913, § 5902; Red River Valley Nat. Bank v. Barnes, 8 N.D. 432, 79 N.W. 880; D. M. Osborne & Co. v. Strinham, 4 S.D. 593, 57 N.W. 776; 15 Cyc. 497, 498.

"Possession of the property by the defendant is distinguished from its mere custody, and, being one of the constituent elements of the offense, must be alleged in the indictment or information." 15 Cyc. 518, 526, and cases cited; State v. Kasper, 5 Wash. 174, 31 P. 636; United States v. Bornemann, 36 F. 257; Whitney v. State, 53 Neb. 287, 73 N.W. 696; State v. Wine, 7 N.D. 30, 72 N.W. 905; Krump v. First State Bank, 8 N.D. 75, 76 N.W. 995; Fegan v. Great Northern R. Co. 9 N.D. 30, 81 N.W. 39.

"The fact that plaintiff had the means of knowledge of facts at his command, and negligently failed to avail himself thereof, will not defeat his recovery, where no loss has resulted to defendant." James River Nat. Bank v. Weber, 19 N.D. 702, 124 N.W. 952; Fagan v. Great Northern R. Co. 9 N.D. 30, 81 N.W. 39.

"Voluntary" means, "by the free exercise of the will; by design; purposely, without being moved, influenced, or impelled by others." 8 Words & Phrases, 7356, 7357; 40 Cyc. 220; Comp. Laws 1913, §§ 5487, 5846; 14 Cyc. 1123; Page, Contr. § 1246; Cooley, Torts, 506; 1 Parsons, Contr. 393.

The mistake here is one largely of fact, and money paid out by mistake of fact may be recovered back. Gregory v. Clabrough, 129 Cal. 475, 62 P. 72; Simpson v. Ferguson, 112 Cal. 180, 53 Am. St. Rep. 201, 40 P. 104, 44 P. 484; Modesto Bank v. Owens, 121 Cal. 223, 53 P. 552; Kreutz v. Livingston, 15 Cal. 346; 1 Chitty, Pl. 362, note 2; Moses v. Macferlan, 2 Burr. 1012, 1 W. Bl. 219; Lockwood v. Kelsea, 41 N.H. 187; Wilkins v. Stidger, 22 Cal. 231, 83 Am. Dec. 64; 30 Cyc. 1316, note 14; 15 Am. & Eng. Enc. Law, 2d ed. 676, 1003, 1005, 1006, 1007, and cases cited; 30 Cyc. 1318, note 17; 30 Cyc. 1320, 1321, and cases cited; James River Nat. Bank v. Weber, 19 N.D. 702, 124 N.W. 952; Rutherford v. McIver, 21 Ala. 750; Brown v. College Corner & R. Gravel Road Co. 56 Ind. 110; Koontz v. Central Nat. Bank, 51 Mo. 275; Douglas County v. Keller, 43 Neb. 635, 62 N.W. 60; Kingston Bank v. Eltinge, 40 N.Y. 391, 100 Am. Dec. 516; National L. Ins. Co. v. Jones, 1 Thomp. & C. 466, affirmed in 59 N.Y. 649; Altston v. Richardson, 51 Tex. 1; Neal v. Read, 7 Baxt. 333; Barth v. Jester Bros. 3 Tex.App. Civ. Cas. (Willson) 267; Rev. Codes, §§ 5391, 5711, Comp. Laws 1913, §§ 5947, 6280.

Money paid under a mutual mistake of fact may be recovered back. Norton v. Marden, 15 Me. 45, 32 Am. Dec. 132; Merchants' Bank v. M'Intyre, 2 Sandf. 431; Goddard v. Merchants' Bank, 2 Sandf. 247, affirmed (1850) 4 N.Y. 147; Guild v. Baldridge, 2 Swan, 295; Tybout v. Thompson, 2 Browne (Pa.) 27; United States v. Onondaga County Sav. Bank, 39 F. 259; United States v. Barlow, 132 U.S. 271, 282, 33 L.Ed. 346, 351, 10 S.Ct. 77; Brown v. Tillinghast, 84 F. 71; Kelly v. Solari, 9 Mees. & W. 54, 11 L. J. Exch. N. S. 10, 6 Jur. 107; Ely v. Padden, 13 N.Y. S. R. 53; Lyle v. Shinnebarger, 17 Mo.App. 66; Kingston Bank v. Eltinge, 40 N.Y. 391, 100 Am. Dec. 516; Union Nat. Bank v. Sixth Nat. Bank, 43 N.Y. 452, 3 Am. Rep. 718; Duncan v. Berlin, 60 N.Y. 151; Lawrence v. American Nat. Bank, 54 N.Y. 432; National Bank v. National Mechanics' Bkg. Asso. 55 N.Y. 211, 14 Am. Rep. 232; Mayer v. New York, 63 N.Y. 455; James River Nat. Bank v. Weber, 19 N.D. 702, 124 N.W. 952.

Swenson & Rodsatter and Bradford & Nash, for respondents.

The contract here is in writing. Under the law, preliminary negotiations cannot be reviewed or considered to contradict or vary the terms of a written contract. 6 R. C. L. p. 228, and cases cited; Comp. Laws 1913, §§ 5897, 5898.

The payment here made was voluntary and cannot be recovered back. There was no fraud or duress. There was no mistake of fact. Comp. Laws 1913, § 4876; 3 Words & Phrases, 2272; 30 Cyc. 1306; Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661, 14 Mor. Min. Rep. 634; Holt v. Thomas, 105 Cal. 273, 38 P. 891; Kohler v. Wells, F. & Co. 26 Cal. 606; Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; Bucknall v. Story, 46 Cal. 589, 13 Am. Rep. 220.

If any mistake was made, it was one of law, and the parties are bound and no one can complain. Comp. Laws 1913, § 5855; Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. 561; Dill v. Shahan, 25 Ala. 694, 60 Am. Dec. 540; Goodenow v. Ewer, 16 Cal. 461, 76 Am. Dec. 540; Kenyon v. Welty, 20 Cal. 637, 81 Am. Dec. 137.

BRUCE, J. GOSS, J. (concurring specially). FISK, Ch. J. (dissenting).

OPINION

BRUCE, J.

This is an action to recover money alleged to have been paid by mistake. The gist of the complaint is that the plaintiff on the 2d day of June, 1913, was employed by the defendant under a written contract as manager, lineman, and repairer of its telephone system, and that at about the same time the plaintiff gave to the defendant a bond to secure the said defendant against any personal dishonesty on the part of the plaintiff, but which bond did not contain any provision guarantying the honesty or integrity of any other employee of the company; that the plaintiff was not well versed in the construction of written contracts, and, when the written contract and bond were made, did not go over the same with sufficient detail to remember all the terms thereof; that the bond and contract were prepared by the defendant, and that the bond (though not the contract) was thereafter kept by the defendant alone; and that the plaintiff never thereafter saw such bond until after the 1st day of March, 1914; that on the 17th day of February, 1914, the officers of the company examined its books, and reported to the plaintiff that his office was $ 505 short in its account with the company saying that the plaintiff as manager was liable for all shortages, and that the bond secured the defendant against losses and for every dollar of such shortage, and that, if said sum of money was not paid, defendant would forthwith bring action on said bond to recover said amount; that the plaintiff, relying on said statement on the part of the officers and directors of the defendant, and fearing the result of such litigation on his future reputation with such bond companies, the possibility of his arrest and conviction of what, from their report, he supposed was a crime, and not having in his possession and control the bond above described, and knowing nothing of its contents except such as was told him by such officers, at once complied with their demands, and on the said 17th day of February, 1914, paid over to the bank at Mohall to the credit of ...