Maloney v. Geiser Manufacturing Co.

• Decision Date: 21 March 1908
• Citation: 115 N.W. 669,17 N.D. 195
• Court: North Dakota Supreme Court

115 N.W. 669

17 N.D. 195

MICHAEL MALONEY v. GEISER MANUFACTURING CO

Supreme Court of North Dakota

March 21, 1908

Appeal from District Court, Grand Forks county; Fisk. J.

Action by Michael Maloney against the Geiser Manufacturing Co. Judgment for plaintiff and defendant appeals.

Affirmed.

Turner & Wright, for appellant.

Testimony not tending to support the case made by the pleadings is inadmissible. Woodward v. Ry. Co., 16 N.D. 38, 111 N.W. 627; Leonard v. Fleming, 13 N.D. 629, 102 N.W. 308.

Plaintiff must prevail on the case made in his complaint, or not at all. Barrett v. Wheeler, 24 N.W. 38; Hoffman v McMorran, 17 N.W. 928; Miller v. Nuchols, 4 L. R. A (N. S.) 149; Taylor v. Modern Woodmen, 83 P 1099, 5 L. R. A. (N. S.) 283; Lucke v. Clothing, etc., Assembly, 19 L. R. A. 408; Mining Co. v. Johnson, 22 P. 459; Browning v. Berry, 12 S.E. 195; Equitable, etc., Co. v. Osborne, 9 So. 861, 13 L. R. A. 267; Fidelity, etc. Co. v. Bank, 25 S.E. 392, 33 L. R. A. 821; Weist v. City of Philadelphia, 200 Pa. 148, 49 A. 891; Ry. Co. v. Jennings, 60 N.E. 818.

A material fact alleged and admitted becomes a verity for the purpose of the case. 2 Wig. on Evidence, section 1064; Tisdale v. Delaware & Hudson Canal Co., 22 N.E. 700.

Guy C. H. Corliss, for respondent.

MORGAN, C. J. FISK, J., did not sit on the hearing of this case; Hon. CHAS. F. TEMPLETON, judge of the First judicial district, sitting by request.

OPINION

MORGAN, C. J.

This is an action for an accounting, and the complaint alleges the following facts: "That prior to June 3, 1902, plaintiff had in his possession a Peerless traction engine, thresher, straw carrier, and elevator, constituting a threshing outfit, which was then and there the property of the defendant. That on or about the said 3d day of June, 1902, plaintiff, as such agent, sold the said property to one Frank J. Roble, for the sum of two thousand ($ 2,000) dollars, and one hundred ($ 100) dollars on account of freight to be paid by the said Roble in the future. That it was understood and agreed between plaintiff and defendant at the time of said sale, and as a part thereof, that the plaintiff might have and receive as and for his commission in connection with said sale all moneys realized by the defendant therefrom except the sum of one thousand ($ 1,000) dollars. That under the said sale, and as representing the said purchase price, the defendant took from the said Frank J. Roble four promissory notes, all dated June, 1902, as follows: [Here follows a description of the notes.] And to secure the amount of indebtedness secured by the said notes the defendant took from the said Frank J. Roble a chattel mortgage upon said threshing outfit and a real estate mortgage duly executed and delivered by the said Frank J. Roble to the defendant. That the defendant has utterly refused to pay to the plaintiff any part of said commissions, but assumes the right to collect all of said indebtedness from the said Roble and from the security so held by it, and applied the same to its own use as its own property. That all of said notes and mortgages were executed to defendant and taken in its name with the understanding that the defendant would account to the plaintiff for all sums realized therefrom over and above the said one thousand ($ 1,000) dollars."

The relief demanded is that the defendant account to plaintiff for all moneys collected from said Roble by it upon said notes, and that it be decreed to pay to plaintiff all moneys realized therefrom in excess of the sum of $ 1,000. And that in case it has collected more than the sum of $ 1,000, and still has any of said notes and securities in its possession, that it be decreed to assign to said plaintiff the said notes and securities remaining in its hands, in addition to paying to plaintiff all of the moneys collected by it in excess of $ 1,000. And in the event that said defendant has not collected from said Roble the said $ 1,000 the plaintiff prays that it may be allowed, at its option, to pay to defendant the portion of said $ 1,000 uncollected by it, on condition that defendant be required to transfer to plaintiff all its interest in said notes and securities. The answer admits that the plaintiff had in his possession the property described in the complaint, and that said property belonged to the defendant, and it also admits that said property was sold by the plaintiff as agent of said defendant, as alleged in the complaint. The answer denies that it was understood and agreed between the parties at the time of the sale that the plaintiff was to receive all sums over $ 1,000 as commission. The answer further alleges that the plaintiff was its local agent at Granville, N.D., and that the terms of such agency were defined in a written contract between the plaintiff and said defendant, and the answer further alleges that the property described in the complaint was a second-hand outfit, and that under the terms of said contract of agency, the plaintiff was not allowed any commissions for the sale of second-hand machinery. The trial court made findings of fact and conclusions of law in favor of the plaintiff, and found that the plaintiff was entitled to all of the proceeds of said sale over and above said $ 1,000, and found that the plaintiff was the equitable owner of said notes and mortgages, subject to the obligation of the plaintiff to pay to the defendant the sum of $ 726.96, with interest from November 16, 1906. This finding is based on the fact that the defendant had collected from said Roble and on foreclosure the sum of $ 557.53. The judgment gave the defendant full credit for the $ 1,000 and interest from the date of said notes, less the payments that had been made thereon through payments by Roble and through a foreclosure of the chattel mortgage on the machinery. The defendant has appealed from the judgment rendered on such findings and demands a retrial in this court under the provisions of section 7229, Rev. Codes 1905. The facts shown by the evidence are substantially as follows:

The plaintiff was the agent of the defendant for the sale of machinery at Granville, N.D., and adjacent territory. During such agency the plaintiff sent to the main office a written order for the purchase of the second-hand outfit described in the complaint, and such order was approved by the company at its main office, and the machinery was delivered to the plaintiff at Granville pursuant to such written order. The order did not specify the price to be paid for said machinery; hence the sale was not a complete one. Under the terms of the written order the defendant warranted that said machinery would do satisfactory work, and it further provided that the title to said machinery should be and remain in the defendant until a settlement was made therefor. After the delivery of said machinery to the plaintiff as aforesaid, the general agent of the defendant was sent to Granville to settle with the plaintiff for said machinery. Before said general agent arrived at Granville, the plaintiff had sold the outfit to one Roble for the sum of $ 2,000, and freight amounting to $ 100 to be paid by said Roble. No delivery of the machinery had been made under this sale to Roble when the general agent arrived. After due negotiations between the plaintiff and said general agent, the price of the machinery was agreed on at the sum of $ 1,000. Immediately thereafter the plaintiff asked the general agent if he had any objections if the security for the machinery should be given by another party, and informed the general agent that he had already sold said machinery to Roble, and told the general agent the price at which the sale was made. The general agent stated that he had no objections to the arrangement, and it was thereafter agreed that the general agent and one of the plaintiff's sons should go to the Roble place and settle for the...