Leuthold v. Fairchild

• Decision Date: 04 May 1886
• Citation: 35 Minn. 99,28 N.W. 218
• Parties: LEUTHOLD AND OTHERS v FAIRCHILD AND OTHERS.
• Court: Minnesota Supreme Court

35 Minn. 99

28 N.W. 218

LEUTHOLD AND OTHERSvFAIRCHILD AND OTHERS.

Supreme Court of Minnesota.

May 4, 1886.

Instructions sent to district court.

Appeal from a judgment of the district court, Dodge county.Taylor & Moses and Robert Taylor, for respondents, Jacob Leuthold and others.

Chas. C. Willson, for appellants, E. E. Fairchild and others.

GILFILLAN, C.J.

The opinion in this case heretofore filed (27 N. W. Rep. 503) is based, as to the liability incurred by John Fern, on our understanding that the findings of fact show that, while assisting Young in sending off the wheat in the elevator, he knew that the latter was wrongfully disposing of the property of others. The fact is not expressly and sufficiently stated in the findings, but other facts are stated which, as seemed to us, the court below intended as equivalent to stating that fact. On a rehearing of the parties as to that point, we think it may be that the court below did not so intend; and, in order that no injustice may be done through a misapprehension of the facts, the court below will amend the findings of fact by adding immediately after the following words in the findings heretofore made, to-wit: “That during all said time one John Fern was the agent and wheat inspector of the said John Young, and assisted him in operating said elevator, and managing said warehouse business, and in all the transactions hereinafter set out,”-a statement whether, at the times of such transactions, and especially at the times of shipping the wheat of plaintiffs as complained of, said John Fern did or did not know that the wheat of depositors not belonging to said Young was being shipped, and did or did not know that the amount of wheat receipts outstanding exceeded the amount of wheat left after such shipments to meet such receipts; and if, as so amended, said findings shall state that said John Fern did, at said times, know such facts, then the court below will modify its judgment only as directed in the opinion heretofore filed. But if, as so amended, the findings shall state that said John Fern, at said times, did not know such facts, then the court below will further modify its judgment so as to conform to the proposition that said Fern was not guilty of a conversion of the wheat, and was not debarred by his acts from claiming his proportionate share of the wheat in the hands of the assignee. And, for the guidance of the court below in the matter, we hold the rule of law to be that...