McArthur v. Dryden

• Decision Date: 27 April 1897
• Court: North Dakota Supreme Court

71 N.W. 125

6 N.D. 438

WILLIAM MCARTHUR v. W. S. DRYDEN

Supreme Court of North Dakota

April 27, 1897

Appeal from District Court, Walsh County, Sauter, J.

Action by William McArthur against W. S. Dryden and the Monarch Elevator Company. Dismissed as to the elevator company. On appeal to the District Court, judgment rendered for plaintiff, and defendant appeals.

Reversed.

Reversed.

John H Fraine and Cochrane & Feetham, for appellant.

Phelps & Phelps, for respondent.

OPINION

BARTHOLOMEW, J.

This action was commenced in justice court. It was originally brought by plaintiff against the defendant Dryden and the Monarch Elevator Company. On trial in justice's court the action was dismissed as to the elevator company. Plaintiff obtained judgment against the defendant Dryden. Dryden appealed to the District Court, where the case was again tried to the court and a jury, resulted in a verdict for plaintiff. Motion for a new trial was overruled, and this appeal is taken from the order of the court denying a new trial. There is a large assignment of errors, of which we shall consider but two: First, that the verdict was contrary to law; and, second, that the testimony was insufficient to sustain the verdict.

The action arose out of the following facts: During the fall of 1895, plaintiff, McArthur, was operating a threshing machine and threshed grain for one William Henry amounting to the sum of $ 286.52. For this sum plaintiff claimed and filed, as he alleges in his complaint, a thresher's lien on the grain so threshed. This lien was perfected on the 22d day of October, 1895. The defendant Dryden was at that time the agent of the Monarch Elevator Company, a corporation, and engaged in operating the elevator of said corporation at the village of Cashel, in Walsh county. That portion of the complaint that seeks to fasten liability upon Dryden is in the following language: "That on or about the 15th day of November, 1895, there was still due and owing to the plaintiff herein, upon said threshing account, by said William Henry, the sum of ninety-three ($ 93) dollars. That prior thereto, and after said threshing was completed, the said William Henry had delivered to the defendant W. S. Dryden a large part of said grain, and said Dryden had placed the same in the elevator of the defendant Monarch Elevator Company, at Cashel, North Dakota, for the purpose of selling the same to said Monarch Elevator Company. That the defendant W. S. Dryden during all the times herein mentioned was, and still is, the agent, at said town of Cashel, for said Monarch Elevator Company, for the purpose of transacting its business there, and that he personally and individually claimed an interest in said grain in the nature of a seed lien upon the same for certain wheat and barley which he had personally and individually sold and delivered to said Henry in the spring of 1895, for the purpose of sowing the same on said land for the crop of 1895, and the same was so sown by said Henry. That on or about said 15th day of November, 1895, and while said sum of ninety-three ($ 93) dollars was still owing by said Henry to the plaintiff herein upon said threshing account, the plaintiff herein was at said town of Cashel with said William Henry, and was endeavoring to obtain from him payment of said balance. They together went to said W. S. Dryden, to have the same adjusted, and paid from the proceeds of said grain. That said Dryden then had due knowledge, notice, and information of the existence of said lien claimed by plaintiff for threshing said grain, and at the joint request of the plaintiff and said Henry he then and there promised, agreed, and undertook, both in his own behalf and on behalf of said Monarch Elevator Company, to pay to the plaintiff the said sum of ninety-three ($ 93) dollars from the proceeds of said grain and more of the same grain which was thereafter to be delivered to said Dryden by said Henry; and that said Dryden did receive personally and individually the proceeds of said grain." It further alleges that Henry thereafter delivered grain to Dryden to the amount of more than 600 bushels, and that the said defendant failed to pay for said grain, or any part thereof, except the sum $ 25. It will be noticed that the action is based upon the alleged promise of Dryden to pay the debt of Henry. Confessedly, this promise was not in writing. In charging the jury, the court said: "Now, gentlemen of the jury, in actions of this kind the statute provides that a promise to answer the obligation of another in any of the following cases is deemed an original obligation of the promisor: First, when the promise is either by one who has received property of another upon an undertaking to apply it pursuant to such promise, or by one who has received a discharge from an obligation in whole or in part in consideration of such promise." The court then gave the jury also the second and third subdivisions of § 4629, Rev. Codes, which need not be quoted here. The court then proceeded: "When a promise is made for the obligation of another by one who has received property of another upon an undertaking to apply it pursuant to such promise, it need not be in...