Loff v. Gibbert

• Decision Date: 21 February 1918
• Citation: 166 N.W. 810,39 N.D. 181
• Court: North Dakota Supreme Court

166 N.W. 810

39 N.D. 181

JOHN H. LOFF, Respondent, v. MIKE GIBBERT and Frank Budack, as Sheriff of Richland County, North Dakota, Appellants

Supreme Court of North Dakota

February 21, 1918

From a judgment of the District Court of Cass County, Pollock, J defendant appeals.

Affirmed.

Pollock & Pollock and George S. Grimes, for appellant.

A party who disclaims any title to certain personal property and suggests and in reality invites a third party to bring attachment against said property as the property of the judgment debtor of said third party, and such attachment proceedings are so instituted, is estopped to claim title to and ownership of such property thereafter. Dresbach v Minnis, 45 Cal. 223; Kirkendall v. Davis, 41 Neb. 285, 59 N.W. 915; Easton v. Goodwin, 22 Minn 426; Greengard v. Fretz, 64 Minn. 10, 65 N.W. 949; Staples v. Fillmore, 43 Conn. 510; Drew v Kimball, 43 N.H. 282, 80 Am. Dec. 163; Horn v. Cole, 51 N.H. 287, 12 Am. Rep. 111; Dezell v. Odell, 3 Hill, 215, 38 Am. Dec. 628; Dewey v. Field, 4 Met. 381, 38 Am. Dec. 376; Peterson v. Woollen, 48 Kan. 770, 30 Am. St. Rep. 327, 30 P. 128; Zuehlke v. Stone, 148 Mich. 478, 111 N.W. 1065; Tolerton & S. Co. v. Casperson, 7 S.D. 206, 63 N.W. 908; Meister v. Birney, 24 Mich. 440.

A party having an adequate remedy at law is not entitled to injunctional protection. Minn. Linseed Oil Co. v. Maginnis, 32 Minn. 193, 20 N.W. 85.

Engerud, Divet, Holt, & Frame, for respondent.

The giving of a receipt to the sheriff for goods levied upon does not estop the receiptor, even while the receipt is outstanding, to deny and dispute the officer's right to the goods and to assert title in the receiptor. Barron v. Cobleigh, 11 N.H. 557, 35 Am. Dec. 505; Morse v. Hurd, 17 N.H. 250; Lathrop v. Cook, 14 Me. 414, 31 Am. Dec. 62; Penobscot Boom Corp. v. Wilkins, 27 Me. 345; Torrey v. Otis, 67 Me. 573; Dayton v. Merritt, 33 Conn. 184; Parks v. Sheldon, 36 Conn. 466, 4 Am. Rep. 95; Perry v. Williams, 39 Wis. 339; Adams v. Fox, 17 Vt. 361; Halbert v. Soule, 57 Vt. 358.

"A party giving a receipt for property seized by an officer upon execution or attachment is estopped from setting up against the officer that the property was his own, or that of any other person than the execution or attachment creditor. But the objection ceases to be binding as soon as the goods are surrendered, and leaves the obligor free to show who is the owner in any subsequent proceeding." Drake, Attachm. § 391; 2 Herman, Estoppel, § 635, p. 773; Johns v. Church, 12 Pick. 557, 23 Am. Dec. 651; Bursley v. Hamilton, 15 Pick. 43, 25 Am. Dec. 423; Mackay v. Holland, 4 Met. 75; Edmunds v. Hill, 133 Mass. 445; Fowler v. Bishop, 31 Conn. 562.

There is no presumption in favor of an estoppel. The party relying upon an estoppel must prove all the facts necessary to create it. Gjerstadengen v. Hartzell, 9 N.D. 275, 81 Am. St. Rep. 575, 83 N.W. 230; 2 Herman, Estoppel, § 741; Bigelow, Estoppel, 6th ed. pp. 774, 681, et seq.; Ketchum v. Duncan, 96 U.S. 659, 24 L.Ed. 868; Brant v. Virginia Coal & I. Co., 93 U.S. 326, 23 L.Ed. 927.

Defendant under the circumstances of this case ought to be estopped to urge any question or objection as to the propriety of hearing and deciding the merits in this form of action. Such objection must be promptly made or it is waived. Comp. Laws 1913, § 7355; 16 Cyc. 128, 133; Brown, B. & Co. v. Lake Superior Iron Co., 134 U.S. 530, 33 L.Ed. 1021, 10 S.Ct. 604; Dan. Ch. Pl. & Pr. 555; Lewis v. Cocks, 23 Wall. 466, 23 L.Ed. 70; Oelrichs v. Spain (Oelrichs v. Williams) 15 Wall. 211, 21 L.Ed. 43; Whiting, McK. & Co. v. Root, 52 Iowa 292, 3 N.W. 134; Baron v. Korn, 127 N.Y. 224, 27 N.E. 804; Ostrander v. Weber, 114 N.Y. 95, 21 N.E. 112.

"In an equitable action the defendant, in order to insist that an adequate remedy at law exists, must set it up in his answer." O'Hara v. Parker, 27 Ore. 156, 39 P. 1004; Wilkeson Coal & Co. v. Driver, 9 Wash. 177, 37 P. 307; Johnson v. Huber, 106 Wis. 282, 82 N.W. 137; Hoff v. Olson, 101 Wis. 118, 70 Am. St. Rep. 903, 76 N.W. 1121; High. Inj. § 119.

But the mere existence of an adequate remedy at law is not of itself sufficient ground for refusing relief in equity by injunction, nor does the existence or nonexistence of a remedy at law accord a test as to the right to relief in equity. It must appear further that the remedy at law is plain, and that it is as practicable and efficient to secure the ends of justice and its proper and prompt administration as is the remedy in equity. Ryan v. Parris, 48 Kan. 765, 30 P. 172; Overton v. Warner, 68 Kan. 96, 74 P. 651; Stout v. LaFollette, 64 Ind. 365; Springer v. Green, 46 Cal. 73; Grant v. Cole, 23 Wash. 542, 63 P. 263; Funk v. Brooklyn Glass & Mfg. Co., 25 Misc. 91, 53 N.Y.S. 1086; Halley v. Ingersoll, 14 S.D. 7, 84 N.W. 201; Sumner v. Crawford, Tex. Civ. App. , 41 S.W. 825; Natalie Anthracite Coal Co. v. Ryan, 188 Pa. 138, 41 A. 462.

OPINION

CHRISTIANSON, J.

In December, 1913, the plaintiff Loff entered into an agreement with the Francis Merchandise Brokerage Company, whereby he agreed to exchange a section of Minnesota land for a stock of merchandise and give $ 5,000 to boot. In performance of the contract, the plaintiff conveyed the land to the company and paid to it $ 2,500 in cash, and received shipments of goods purporting to be the merchandise described in the contract. The plaintiff, who is a merchant at Abercombie, sold some of the goods received in the first shipment, but on receipt of the remainder of the goods he discovered that the representations of the Francis Merchandise Brokerage Company, as to the value and quality of the goods, were false and fraudulent. Upon discovering the fraud he segregated the goods which he had received and kept the goods so segregated ready for redelivery to the company. At the same time he commenced an action in the United States district court in Minnesota, wherein he offered to restore to the Brokerage Company the goods still in his possession and to pay the value of the goods sold. And in such action Loff asked that the contract be rescinded and set aside, that the defendants therein be required to reconvey the land, and that the Brokerage Company be ordered and required to accept, take, and remove the goods and pay to the plaintiff the difference between the $ 2,500 paid by the plaintiff to the Brokerage Company and the sums received by him from the sale of part of the goods.

The defendant Gibbert had obtained a verdict against the Brokerage Company for $ 1,708.53 in the district court of Hennepin county on January 30, 1914. On February 9, 1914, plaintiff's attorney, Judge Engerud, had a conversation with Grimes, Gibbert's attorney, with respect to the Francis Brokerage Company. In that conversation the transaction between Loff and the Brokerage Company was fully discussed, and Judge Engerud informed Grimes that Loff intended to bring an action in the United States district court to obtain a rescission of the contract and a reconveyance of the land which Loff had conveyed to the Brokerage Company. The action for rescission was commenced, February 10, 1914. Thereafter on February 17, 1914, Grimes wrote Engerud as follows: "In reference to your suit against Francis Merchandise Brokerage Company I understand that your client has rescinded the contract and brought an action in the Federal court at Fergus Falls to recover his land, and has tendered back to the Brokerage Company the invoice of the merchandise shipped to him. Kindly advise me whether this is so, and if it will in any way prejudice your client's interest for me to levy an attachment upon these goods as the property of the Francis Merchandise Brokerage Company. If your client still has any claim upon the goods, of course I do not want to dip in or have any contest of any kind with him, but if he has rescinded the contract and does not claim any title to the goods, I would like to put an attachment upon them in favor of the claim in hand."

Judge Engerud replied to this letter on February 18, 1914, as follows: "In reply to yours of the 17th inst. will say that we have brought suit to rescind the contract with the Francis Merchandise Brokerage Company, the suit being now pending in the United States district court at Fergus Falls. The goods which we received are in the hands of our client John Loff at Abercombie, North Dakota, being held by him for the defendant, we, of course, claiming and asserting that the goods belong to the defendant and that we are ready to turn them over to the corporation. I would think, therefore, that it would be entirely proper for you to attach them as the goods of the Francis Merchandise Brokerage Company. There is certainly no objection to that course so far as our client is concerned. The goods are worth about $ 2,000."

The defendant Gibbert thereafter instituted an action in the district court of Cass county, and a warrant of attachment was issued therein, under which the sheriff of Richland county levied upon the stock of merchandise in Loff's possession at Abercombie. The sheriff did not remove the goods but left them in Loff's possession, taking his receipt therefor.

Gibbert obtained judgment against the Brokerage Company by default. He thereupon caused an execution to be issued, and by virtue thereof the defendant sheriff, on or about April 20, 1914, removed the goods from Loff's possession for the purpose of selling them at an execution sale, the sale being advertised to be held on May 7, 1914.

At the time the sheriff removed the goods he, at the request of Gibbert's attorney, presented to Loff, and requested that he execute, a certain instrument disclaiming "any right title, or interest in or to" the merchandise. This disclaimer bears date March 2, 1914, and was...