Judd v. Dike
| Decision Date | 04 May 1883 |
| Citation | 15 N.W. 672,30 Minn. 380 |
| Parties | Mary A. Judd v. William H. Dike |
| Court | Minnesota Supreme Court |
Plaintiff brought this action in the district court for Rice county, alleging in her complaint that on and long prior to March 2, 1881, the plaintiff and defendant were the owners of four Minnesota state railroad bonds, numbered 1740, 1742 1743 and 1745, drawing interest at 7 per cent. per annum from March 10, 1869, and payable to bearer, the defendant's interest therein being two-thirds and plaintiff's one-third. That the bonds were in defendant's possession and their ownership, as above stated, continued until March 22, 1881, when defendant, with plaintiff's consent deposited the bonds with the state auditor, and afterwards received in exchange therefor the sum of $ 126.31 in cash and seven Minnesota state railroad-adjustment bonds, of the denomination and value of $ 1,000 each, and numbered 3162 to 3168 respectively, (both inclusive,) payable to bearer, and drawing interest at 4 1/2 per cent. per annum from January 1, 1882; and in consideration of plaintiff's interest in the old bonds and her consent to the deposit and exchange, the defendant promised to pay over to her her proportionate share of the proceeds thereof. That on or about January 1, 1882, the defendant, without plaintiff's knowledge or consent, sold two of the seven new bonds, at their par value, and received therefor $ 2,000 and the accrued interest to the time of sale. That about February 20, 1882, plaintiff demanded her share of the proceeds of the original bonds so deposited for exchange, but the defendant has not paid her any part of the money or new bonds received in exchange, or any part of the proceeds of the new bonds sold, but wholly refuses to do so, and has converted all and singular the same to his own use.
The prayer for judgment is: "That the defendant account for and pay over to the plaintiff her share of the proceeds of the original bonds and of the money and property realized, and, in case it shall be found that a portion of the proceeds remaining in defendant's hands consist of Minnesota state railroad-adjustment bonds or other property which are incapable of being justly divided, that the plaintiff recover her share of the value thereof, or that the same be placed in the hands of a receiver or some suitable person appointed by the court, to be disposed of and converted into money under the direction of the court, and the proceeds thereof be distributed between the parties as their respective interests may require, and for such other or further judgment, order or relief as to the court may seem just and equitable."
The answer admits defendant's possession and exchange of the old bonds, his receipt of the cash and new bonds on the exchange, his sale of two of the new bonds for $ 2,000, without plaintiff's knowledge or consent, "as he lawfully might," admits the demand and refusal, and denies that plaintiff ever had any interest in any of the old bonds, or that he ever promised to pay over to her any part or share of the proceeds thereof. The reply denied every allegation of new matter in the answer.
The action being on the calendar for trial at the May, 1882, general term, Buckham, J., presiding, and being reached upon the preliminary call of the calendar, the defendant claimed and insisted that the issue was of fact in an action for the recovery of money only, and triable by a jury as a matter of right; and afterwards, when the cause was called for trial, the defendant renewed his claim, and demanded and insisted that the issues in the cause be tried by a jury. The court refused the demand and denied a jury trial, and proceeded to try the action without a jury, to all which the defendant excepted. The court found as facts that on and long prior to March, 1881, the plaintiff and defendant were owners of three Minnesota state railroad bonds, which had been purchased by defendant and one Jared Bishop, as trustee of the plaintiff, while partners in business, long prior to March 22, 1881, and held by them with other property, including a small interest in a fourth bond, until some time after the dissolution of their copartnership; and in their final settlement of their partnership affairs, it was agreed between the partners that, as to the bonds, the defendant should thereafter hold a two-thirds interest in the three bonds, and Bishop, as trustee for plaintiff, a one-third interest; and the bonds were left in the defendant's hands for management and collection and were so retained by him until exchanged. That about ten years before the trial, Bishop, plaintiff's trustee, died, and before his death the property held by him as such trustee, and all right thereto, passed into the possession and control of the plaintiff, "though whether by actual surrender and delivery thereof, or by a written assignment, or by verbal gift, is left uncertain upon the evidence." The court found the exchange, and a sale of four of the new bonds prior to the trial, and as a conclusion of law, that, on the exchange, the plaintiff became entitled to her proportionate share of the new bonds, -- viz., one-third of three-fourths, -- and was entitled to judgment declaring her right to such proportionate share of such money and bonds, and adjudging that defendant pay her such share of the sum paid him on the exchange, and of the proceeds of the bonds sold, with interest on each sum from the time of its receipt by defendant; and directing a sale of the remainder of the bonds, under the direction of the court and by its receiver and according to the practice of the court in such cases, and a division of the net proceeds of such sale between the parties in proportion to their respective interests; and that in and by the judgment George A. Weston be appointed receiver, etc.
Defendant moved for a new trial on the grounds (1) irregularity in the proceedings of the court by which defendant was prevented from having a fair trial; (2) that the decision was not justified by the evidence; (3) errors in law duly excepted to. The motion was denied, judgment was entered in accordance with the decision, and the defendant appealed.
Judgment affirmed.
Geo. N Baxter, for appellant. The complaint states merely a promise by defendant to pay over to plaintiff one-third of the proceeds of the old bonds, his refusal to do so, and a conversion of...
To continue reading
Request your trial