Morris v. Bradley
| Decision Date | 21 September 1910 |
| Citation | 128 N.W. 118,20 N.D. 646 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes county; Edward T. Burke, J.
From a judgment in defendant's favor, plaintiff appeals.
Reversed and new trial ordered.
Judgment reversed and a new trial ordered.
T. F McCue, for appellant.
Page & Englert, for respondent.
Plaintiff seeks to recover damages from the defendant for alleged misconduct in the performance of his duties as plaintiff's agent in the sale of a certain second-hand threshing rig. The complaint is very lengthy and inartistically drawn, but in brief it alleges that on August 23, 1901, plaintiff, being the owner of such rig, entered into a contract with defendant by the terms of which the latter was authorized to sell said second-hand outfit and to receive as his commission therefor all he could get above $ 1,000. It was stipulated that the security to be taken for the purchase price was to be "fair." It is alleged that on or about September 11th of said year, defendant represented to plaintiff that he had sold said property to perfectly responsible parties for the sum of $ 1,400, but that certain repairs would have to be made thereto before such purchasers would accept the same. Then follow allegations with reference to an alleged mutual modification of the agency contract relating to the amount of defendant's commission, in consideration of which plaintiff expended certain moneys in making the necessary repairs, and that as a further inducement for making such repairs it is alleged that defendant represented to plaintiff that the proposed purchasers were financially responsible and that the promissory notes and securities to be taken representing the purchase price would be bankable paper. It is next alleged that defendant took said rig to Kenmare and delivered the same to one D. P. Show and one Jessie Show, taking from them three notes payable to defendant aggregating $ 400, and three notes payable to plaintiff aggregating $ 1,000, signed by said D. P. and Jessie Show. Also at the same time he took as security for the payment of such notes a chattel mortgage covering the threshing rig aforesaid and certain other personal property running to defendant and also a similar chattel mortgage in plaintiff's favor to secure the payment of the notes aforesaid. That defendant caused the mortgage running to himself to be first filed for record and thereafter sold and assigned the notes and mortgages taken in his name to an innocent purchaser for value, payment of which notes was thereafter enforced through a sale of the personal property mortgaged.
It is further alleged that plaintiff was not acquainted with the Shows, and knew nothing of their financial responsibility, but that he relied wholly upon the representations and statements made by defendant that they were perfectly solvent and the notes bankable and that plaintiff was induced to and did accept the notes payable to his order because of such representations. That such representations were false; that said Shows were insolvent and wholly unable to pay said notes at said time or at any other time. That at the time plaintiff accepted said notes he had no knowledge that defendant had taken and filed the chattel mortgage constituting a prior lien upon said property. Then follows allegations of plaintiff's inability to collect the amount due on the notes thus accepted by him, or any part thereof, except the sum of $ 188.26. That defendant retained in his possession, for the purpose of collection, the said notes, and during the time he had such notes as aforesaid he collected the sum of $ 200, applying the same upon the alleged commission notes taken in his name. It is then alleged that defendant, in making the sale of the threshing rig aforesaid, acted in bad faith toward plaintiff, and falsely and fraudulently made the representation aforesaid with reference to the financial ability of the said Shows, and that he connived and acted in bad faith in obtaining a first mortgage upon the property for his own use and benefit, and in applying on the commission notes the $ 200 aforesaid. By reason of which facts plaintiff alleges that he has been damaged in the sum of $ 1,000, less the amount collected by him of $ 188.26.
The various allegations of the complaint were put in issue by defendant's answer, and at the trial plaintiff furnished proof in support of the allegations of the complaint, and rested;...
To continue reading
Request your trial