Magnuson v. Stiehm
| Decision Date | 09 July 1918 |
| Citation | 168 N.W. 613,40 N.D. 141 |
| Parties | MAGNUSON et al. v. STIEHM. |
| Court | North Dakota Supreme Court |
The action is one of accounting. Evidence examined, and held to sustain the findings and judgment of the trial court.
In an action for an accounting under a contract for lumber sold to defendant, wherein defendant set up the contract and demanded a full accounting, the burden of proof was on defendant.
The findings of the trial court, if not against the preponderance of the evidence, should be sustained and the judgment affirmed.
An experienced lumberman in charge of a line yard, stating that he was familiar with 1915 invoice price for western lumber, was qualified to testify on the value of lumber in 1915 and 1916.
Where a contract gave defendant the privilege of purchasing from plaintiff such lumber as it wished to use to December 1, 1916, plaintiff was not bound to keep on hand any specific kind of lumber or material which defendant might so purchase.
One selling a stock of lumber could not turn over possession and still retain possession, and after he turned over possession he had no possession left out of which any lien on stock could arise under Comp. Laws 1913, §§ 5966, 6864.
Appeal from District Court, McHenry County; A. G. Burr, Judge.
Action for accounting by Benj. W. Magnuson and J. W. Magnuson, copartners as Magnuson Brothers, against W. F. Stiehm. Judgment for plaintiffs and defendant appeals. Affirmed.F. B. Lambert, of Minot, for appellant. Hanchett & Johnston, of Harvey, for respondents.
This action is conceded by both parties to be an action for accounting. It is not necessary to set out the pleadings, but we will refer to them after we have stated the facts for the purpose of indicating where the burden of proof lies in this action; this being one of the main contentions in the case.
On the 19th day of October, 1915, the defendant sold his stock of lumber, then located at Drake, N. D., to the plaintiffs. Such sale was by written contract. It is unnecessary to set out the contract in full; it is only necessary to state that the contract provided that plaintiff bought and defendant sold the stock of lumber at the 1915 invoice price as shown by the books and shipping bills, and in addition thereto the sum of $5. The contract further provided that the defendant, until December 1, 1916, was to be allowed to purchase lumber and building material from the plaintiffs at 10 per cent. above invoice price laid down in the yard during such period. The right of the defendant to purchase lumber from the plaintiffs under such contract to December 1, 1916, was limited to a dwelling house in Drake and all building and lumber materials needed by the defendants on the farm in the Drake territory then owned by him. The stock of lumber was situated on lots 14 and 15 in block 2 in the original town site of Drake. There is a covenant in the contract that the defendant would lease such lots to the plaintiffs at $8 per month for a period of three years from the date of the contract, with the privilege, to said plaintiff, to extend said lease for two years, and a provision in the lease that the plaintiffs might purchase said lots for $800 at any time during the life of the lease. The foregoing is the substance of the contract, and all that need be referred to. Plaintiffs went into immediate possession, and all the rough lumber outside of the sheds was inventoried or listed. The inside lumber or that in the shed was not listed. There is some controversy about some lumber claimed to have been burned, or partially burned, in one of the sheds. Checking up and inventorying of all this finishing lumber seems to have been completed in the month of February, 1916.
It is conceded that the plaintiffs paid the defendant $3,150. We refer now to plaintiffs' amended complaint, which first states that the plaintiffs claim $494.50 for lumber and material sold back to the defendant after the purchase of said lumber stock by the plaintiffs. Referring to the pleadings, it is found the amended complaint states cause of action for lumber and material sold the defendant for $494.50, which lumber and material was sold to defendant under that clause of the contract above referred to where defendant had the privilege of purchasing lumber until December 1, 1916, at cost price, at the yard, plus 10 per cent. The complaint goes on further to allege the purchase of the stock of lumber under the contract and alleges the payment of $3,150 on that account, and alleges that said amount was sufficient to pay, and did pay, any and all sums which the defendant might have coming from the plaintiffs for the purchase price of said lumber under said contract and alleges there is nothing due from the plaintiffs to the defendant upon such account, and the prayer, in the plaintiffs' complaint, asks that it be adjudged that there is nothing due from the plaintiffs to the defendant, and asks for judgment of $494.50 against defendant. The answer allegesthere are mutual obligations existing between plaintiffs and defendant, then sets out the contract in full, and alleges the failure and neglect of the plaintiffs to comply with the contract, and alleges that the plaintiffs owe the defendant $236.73 on principal and $40, interest, and further alleges that the plaintiffs failed and refused to allow the defendant the full price agreed to in their contract; that the plaintiffs failed and refused to allow the defendant the full rights agreed to in their contract, and refuse to give him credit for materials and lumber, and failed to deliver the defendant lumber and building material he ordered from time to time in accordance with his contract, even when they had such building material on hand, thus compelling the defendant to go elsewhere and pay the regular retail price for such stock, and alleges that plaintiffs have overcharged the defendants for lumber and building material purchased under said contract. The answer then concludes with a prayer for an accounting, and that the defendant have judgment for the amount found to be due.
[2] The merest inspection of the pleadings discloses that the plaintiff seeks to recover nothing excepting the account for $494.50, which was lumber sold by plaintiffs to the defendant, under that clause of the contract to which we have previously referred, for defendant's use. Plaintiff, in his complaint, claims that part of the original contract, which had reference to the payment for the stock, had been satisfied by the payment of $3,150, and claims the contract was fully completed in this regard. It would appear therefore that the plaintiffs were not seeking an accounting of the whole transaction, but simply the recovery for the $494.50 item, most of which was concededly due them. The defendant, however, comes in and sets up the contract in full, and alleges there are mutual accounts existing between the parties, and demands a full accounting of all the transactions. With the pleadings in this state, we agree with the conclusion of the trial court that the burden of proof was with the defendant. The plaintiffs' claim being conceded that there was $3,150 paid on the purchase price, and plaintiffs claiming that was the whole of the purchase price, and claiming that to be a payment in full for all the material, the burden is on the defendant to show it was not.
The amount of the value of the property at the time of the making of the contract was an unknown quantity, and it would appear to us that the burden of proof was on defendant to show the amount of property, to wit, lumber and building material which he sold plaintiffs and the value thereof; and especially is this true where plaintiffs allege the payment of a sum of money, and allege that to be a full payment of the property so purchased under the contract. This view appears to be still more reasonable when it is remembered that the defendant purchased all the lumber and building material in question, and as such purchaser received the invoices and had greater opportunity to ascertain the value of the stock of lumber as determined by the invoices, or, if they were lost, then, by submitting other competent evidences of value, than would the plaintiffs. For these reasons, we think, in this case, the burden of proof was clearly on the side of the defendant.
The defendant claims there was a settlement agreed upon for the amount shown in Exhibit 33, which was $3,443.50, less $49.50, or $3,394. Exhibit 33 is claimed to show a total which is claimed to be a total invoice price as shown by Exhibits 6 to 18, inclusive. It is clear from the testimony there was no settlement on the basis claimed by defendant ever entered into by the parties. It is also equally clear from the answer that there was no settlement on the basis claimed by the defendant. There was no attempt, in the defendant's answer, to plead the settlement. If the defendant relied upon the settlement which he claims he made, he would not be asking for an accounting. He would have alleged the settlement and the amount thereof and set it up as a...
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