Jensen v. Northwestern Underwriters' Ass'n
| Decision Date | 13 October 1916 |
| Docket Number | 1915 |
| Citation | 159 N.W. 611,35 N.D. 223 |
| Court | North Dakota Supreme Court |
Action to recover on the contract for the sale and transfer of land.
Appeal from the District Court of Grand Forks County. Charles M Cooley, J.
Judgment for Plaintiff. Defendant appeals.
Affirmed.
H. A Bronson, for appellant.
A party cannot be permitted to establish written agreements covering the entire subject-matter of the litigation in detail, and then proceed to prove parol contemporaneous agreements to set aside such valid written agreements; nor can such agreements be set aside or overcome by proof of a custom indulged in by plaintiff. Comp. Laws 1913, § 5889; Gile v Interstate Motor Car Co. 27 N.D. 126, L.R.A.1915B, 109 145 N.W. 732; 21 Am. & Eng. Enc. Law, 1089; 11 Am. & Eng. Enc. Law, 489; 27 Cyc. 867; Richards v. Killam, 10 Mass. 239, 6 Am. Dec. 119; Clark v. Sherman, 5 Wash. 681, 32 P. 771; 4 Wigmore, Ev. §§ 24, 25 p. 3409; Lowe v. Jensen, 22 N.D. 148, 132 N.W. 661; Yancey v. Boyce, 28 N.D. 187, 148 N.W. 539, Ann. Cas. 1916E, 258; Tharp v. Blew, 23 N.D. 3, 135 N.W. 659.
The written evidence of indebtedness is the note; and applying principles analogous concerning mortgages, when a note and mortgage conflict in their terms, the note controls. 27 Cyc. 1058; Graham v. Fitts, 53 Fla. 1046, 43 So. 512, 13 Ann. Cas. 151; Muzzy v. Knight, 8 Kan. 456; Meyer v. Graeber, 19 Kan. 165; 2 Jones, Mortg. § 1179a.
Where a contract refers to another instrument as a part of itself, the terms of such instrument are incorporated in the contract. Moore v. Ramsey County, 104 Minn. 30, 115 N.W. 750.
The subscriptions for stock and the note given by the plaintiff were valid and binding obligations, and could not be fictitious subscriptions. Comp. Laws 1913, § 10,003.
Inconsistent defenses may be pleaded, and where no motion was made on the trial, either to strike out or to compel an election, all objections are waived. 31 Cyc. 225; J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N.W. 231, 7 Ann. Cas. 505.
The facts alleged, and not the relief demanded, determine the nature and quantity of relief to be granted. 31 Cyc. 111.
In such cases, the procedure which permits a forfeiture of corporate stock is definitely outlined and requires definite steps to be taken by the board of directors, at a properly called meeting, with notice to the stockholder.
But, the situation here presented is more in the nature of a rescission and cancelation of a contract, for nonperformance. 10 Cyc. 499, 935, 943; 26 Am. & Eng. Enc. Law, 2d ed. 929; Comp. Laws 1913, §§ 4526, 4529, 4843.
There was only one issue in this case on the trial, and that was whether or not plaintiff, by a preponderance of the evidence, had established his express contract. The plaintiff had alleged an express contract; the defendant had denied this, and had pleaded certain facts by way of explanation, and in a negative manner.
The burden of proof still remained upon plaintiff throughout the case. The court, by its charge, created two issues, and placed an undue burden upon defendant, before the jury. 38 Cyc. 1751; Wall v. Hill, 1 B. Mon. 290, 36 Am. Dec. 578.
"Where plaintiff sues upon a demand bearing interest and defendant pleads a discount not bearing interest, plaintiff is entitled to calculate interest on his whole demand up to the time of the verdict; conversely, where the plaintiff's demand does not bear interest, and the defendant pleads a demand drawing interest, the jury must give interest on the set-off at the time the verdict is rendered in the action, and reduce the plaintiff's demand by the amount of the set-off and interest." 34 Cyc. 758; Russell v. Rogers, 1 Nott & M'C. 24; Morse v. Ellerbe, 4 Rich. L. 600.
The fact that the defendant in the amended answer pleaded the cancelation of said note and stock certificate does not in any sense amount to an admission or tend to prove an admission. Abbott, Trial Brief, § 8910; 1 Thomp. Trials, 2d ed. § 1007.
Plaintiff cannot be permitted to prove an implied contract, based upon his custom of doing business in other transactions, or any oral arrangement made at the time of entering into the written contract, to offset, change, or contradict the terms of such written contract. Comp. Laws 1913, § 5889; Gile v. Interstate Motor Car Co. 27 N.D. 126, L.R.A.1915B, 109, 145 N.W. 732.
W. J. Mayer, for respondent.
The answer does not state a cause of action or defense, even though the pleading bears the marks of a counterclaim. But plaintiff has replied that the note was given without consideration,--a charge that is admitted by the motion for judgment on the pleadings. Storey v. Murphy, 9 N.D. 115, 81 N.W. 23.
There was never any intention of counsel to stipulate that defendant might recover upon the note, and at most the stipulation is a mere assumption or conclusion, or opinion as to the law, and is not binding either upon counsel or the court. Prescott v. Brooks, 11 N.D. 93, 90 N.W. 129.
"When a corporation is authorized by the terms of subscription or otherwise, to forfeit stock for nonpayment, it may either forfeit the stock or recover the amount of the subscription; but it cannot do both." Comp. Laws 1913, § 4526.
"The general power to do any act or to make any contract is in the board of directors." 21 Am. & Eng. Enc. Law, 2d ed. p. 503.
"The duties of the secretary are to keep the corporation records and to carry into operation the votes of the directors." 21 Am. & Eng. Enc. Law, 2d ed. p. 561; 26 Am. & Eng. Enc. Law, 2d ed. p. 929.
"The power to declare a forfeiture of a share for nonpayment of the amount due thereon must be exercised in strict compliance with the charter or statutory requirements." 26 Am. & Eng. Enc. Law, 2d ed. p. 929.
"Interest is calculated on the balance of two cross claims where both are allowed, from the date when both became due." 19 Enc. Pl. & Pr. 810; Tucker v. Jewett, 32 Conn. 563; Meriwether v. Bird, 9 Ga. 594; Adkins v. Ware, 35 Tex. 577; Brown v. Montgomery, 19 Tex. Civ. App. 548, 47 S.W. 803; Whaley v. Broadwater, 78 Ga. 336.
"Admissions made in a pleading will bind the party in a suit in which they are filed, though such pleadings have been stricken out or withdrawn." 1 Am. & Eng. Enc. Law, 2d ed. p. 719.
Statement of facts by BRUCE, J.
This is an appeal from an order denying the motion of the defendant for a new trial or for judgment notwithstanding the verdict. This opinion is written after a rehearing.
The complaint alleges:
1.
That the defendant is a corporation organized under the laws of the state of North Dakota.
2.
That heretofore and in the fall of 1912, plaintiff purchased of defendant seventy-five allotments of stock, each allotment consisting of one share of plaintiff's capital stock and one share of the capital stock of the Northern Fire & Marine Insurance Company, at the agreed price of $ 28 per allotment, or a total of $ 2,100. It being then and there agreed that the same should be paid for only as sold by plaintiff to other purchasers, that plaintiff should account to defendant for the sum of $ 28 for each allotment so sold, either in the form of cash or other settlement taken from such purchaser acceptable to defendant. 3.
That under the aforesaid agreement during the month of February, 1913, plaintiff sold thirty-eight allotments of said stock, of the value of $ 1,900, at the agreed price of $ 50 per share for a total sum of $ 1,900. Settlement being taken therefor in the form of farm lands, and that said entire settlement was turned over and accepted by the defendant, with the agreement and understanding that defendant should account in cash to plaintiff for the difference over and above the price plaintiff had agreed to pay to defendant for the said stock, which said excess amounted to the sum of $ 836.
4.
That the said sum of $ 836 so due from defendant to plaintiff, though duly demanded, has not been paid nor has any part thereof.
Wherefore, plaintiff demands judgment in his favor and against the defendant for the sum of $ 836, with interest thereon from the 1st day of March A. D. 1913, together with the costs and disbursements of this action.
The amended answer is as follows:
1.
The said defendant admits paragraph 1 of the said complaint.
2.
The said defendant admits that in the fall of 1912 the said plaintiff purchased of the said defendant seventy-five allotments of stock, each allotment consisting of one share of defendant's capital stock and one share of the capital stock of the Northern Fire and Marine Insurance Company, at the agreed price of $ 28, per allotment, or a total of twenty-one hundred and no-100 ($ 2,100) dollars, and alleges in respect thereto that the said plaintiff gave his promissory note to the said defendant for the said sum of twenty-one hundred and no-100 ($ 2,100) dollars, whereby he promised to pay the said sum on demand to the said defendant. That the said plaintiff has not paid said note nor any part thereof, excepting the sum of seven hundred twenty-eight dollars; that by reason of the nonpayment of said note and the balance due thereon, the said stock so purchased was duly canceled for nonpayment.
3. For and as a counterclaim herein the said defendant re-alleges the matters set forth in paragraph 2 of the answer, and specifically alleges that on or about the 11th day of November, 1912, at Grand Forks, North Dakota, the said plaintiff gave, executed, and delivered his promissory note to the said defendant for the sum of twenty-one hundred dollars ($ 2,100), whereby he promised to pay to the order of the said defendant such sum on demand; that no part thereof has...
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