Kennedy v. State Bank of Bowbells
| Decision Date | 08 September 1911 |
| Citation | 132 N.W. 657,22 N.D. 69 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ward county; E. B. Goss, J.
Action by W. T. Kennedy against the State Bank of Bowbells. From a judgment for plaintiff based on a verdict directed by the court, defendant appeals.
Affirmed.
Palda Aaker, Greene, & Kelso, for appellant.
D. C Greenleaf and W. F. Doherty, for respondent.
FISK J. MORGAN, Ch. J., and GOSS, J., took no part in the decision; Honorable FRANK E. FISK, Judge of the Eleventh Judicial District, sitting in place of the latter by request.
Action to recover as for money had and received to plaintiff's use. Plaintiff was successful in the court below, and the notice of appeal recites that it is both from the judgment and from an order denying defendant's motion for a new trial, but no such motion or order is disclosed in the record.
The facts are not seriously disputed. The following is appellant's version of such facts, slightly modified by us to conform to what we deem the true situation: On January 28, 1906, plaintiff sent to the defendant from Amery, Wisconsin, a draft, on the Northwestern National Bank of Minneapolis for $ 1,700, indorsed by the plaintiff, payable to the order of one D. W. Kelly. Such draft was sent with instructions that the same was to be held in escrow, subject to the following conditions: The draft to be delivered to Kelly when the latter should deposit with the defendant a warranty deed conveying the S.E. 1/2 of section 24, in township 163 N., of range 95 W., in Williams county, North Dakota, and also furnish an abstract of title showing the record of such deed and perfect title in fee simple in the plaintiff; the draft to be held subject to the approval of the abstract by the plaintiff. Defendant received such letter and draft and held the same until the 28th day of February, when it passed the draft for deposit to its credit in the National Bank of Commerce in Minneapolis, and on March 1, 1906, it sent the warranty deed, Exhibit 6, and the abstract of title, Exhibit 5, to plaintiff at Amery, Wisconsin. The money was not paid to Kelly on the draft until March 19, 1906. On March 3d the plaintiff wrote and forwarded to the defendant Exhibit 4, in which he objected to the title and the abstract on account of its failure to show patent from the United States and on account of some personal-property taxes. On March 7, 1906, defendant wrote plaintiff the letter, Exhibit 7, in which attention was called to the fact that the personal-property tax had, at the time of writing the letter, been paid, and made some explanation as to the patent. In answer, plaintiff wrote the letter, Exhibit 8, wherein he expressed his willingness to rely upon the defendant to forward the patent as soon as it should be received from the government. Replying thereto, defendant wrote Exhibit 9, in which it disclaimed any intention to guarantee the title or the issuance of patent, and notified plaintiff that, unless he decided to accept the deed and title, the grantors in the deed desired the land reconveyed. This last letter was dated and forwarded on March 12, 1906. Defendant's assistant cashier, D. E. McLellan, testifies, that no subsequent communication was received, to his knowledge, from plaintiff concerning the transaction, and on the 19th of March, 1906, the proceeds of the draft were credited to Tessie C. Black on defendant's books. Plaintiff claims to have forwarded under date of March 17, 1906, a letter of which Exhibit 10 is a carbon copy, in which plaintiff expressed his willingness to wait a reasonable time for the patent, but closed his letter with the following language: "You will, however, hold the money until the patent is forthcoming." The assistant cashier, McLellan, claims that such letter was never received to his knowledge, and after waiting from March 12th, the date of the bank's last letter to the plaintiff, the defendant bank paid the money as above mentioned. The matter stood in this situation until November, 1906, when plaintiff called upon defendant bank, and was informed that the draft had been cashed and paid in money to Kelly long prior thereto, and plaintiff demanded back the $ 1,700 from the defendant, and offered to the defendant the deed. The demand was refused, and thereupon the plaintiff brought this action to recover from the defendant the $ 1,700, alleging that the same was received by the defendant to the use of the plaintiff, and was the property of plaintiff. The parties, through their respective counsel, entered into a stipulation which was offered and received in evidence, wherein it was in substance stipulated as a fact that Tessie C. Black, the grantor in the deed, Exhibit 6, made H. E. No. 28,177 for said land in May, 1904, and submitted final proof for such entry in October, 1905; that in March, 1906, the Commissioner of the General Land Office rejected such proof, giving to such entryman the right to submit new proof; and that, although she received due notice of such action, she failed to comply therewith, and in September, 1906, her final proof and final receiver's receipt were canceled by such Commissioner, and in October of said year she relinquished to the government all claims to such tract, and thereafter one McGee made H. E. entry thereon.
Appellant assigns errors as follows: (1) The court erred in overruling the defendant's objection to the...
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