Mulroy v. Jacobson
| Decision Date | 16 January 1913 |
| Citation | 139 N.W. 697,24 N.D. 354 |
| Parties | MULROY v. JACOBSON |
| Court | North Dakota Supreme Court |
Appeal from District Court for Griggs County, Goss, Special Judge.
From a judgment in plaintiff's favor, and from an order denying a motion for a new trial, defendant appeals.
Reversed and new trial ordered.
Reversed and remanded.
Ball Watson, Young, & Lawrence, for appellant.
Oral negotiations of the parties became merged in the written contract, and it was error to permit testimony as to the terms of such contract. Taugher v. Northern P. R Co. 21 N.D. 111, 129 N.W. 747.
The legal effect of a contract of exchange of property is generally the same as that of a contract of sale. 35 Cyc. 40; Rev. Codes, § 5445; 28 Am. & Eng. Enc. Law, 664; Hornblower v. Proud, 2 Barn. & Ald. 327, 20 Revised Rep. 456; Wait v. Baker, 2 Exch. 1, 17 L. J. Exch N. S. 307; Emanuel v. Dane, 3 Campb. 299; Armstrong v. Allen, 4 Reports, 107, 67 L. T. N. S. 738, 7 Asp. Mar. L. Cas. 293; Martin v. Reid, 11 C. B. N. S. 730, 31 L. J. C. P. N. S. 126, 5 L. T. N. S. 727; Locke v. Reeves, 116 Ala. 590, 22 So. 850; Union Stock Yard & Transit Co. v. Mallory, Son & Z. Co. 157 Ill. 554, 48 Am. St. Rep. 341, 41 N.E. 888; Rogers v. Miller, 62 N.H. 131; Feist v. Prince, 22 Misc. 358, 49 N.Y.S. 280; Stoneman v. Van Vechten, 165 N.Y. 666, 59 N.E. 1131; International & G. N. R. Co. v. Ogburn, 26 Tex. Civ. App. 217, 63 S.W. 1072.
To maintain trover, plaintiff must have a legal title; equitable title alone not sufficient. 28 Am. & Eng. Enc. Law, 663.
Plaintiff must show possession, or legal right to possession, and general or special ownership of the property. Parker v. First Nat. Bank, 3 N.D. 87, 54 N.W. 313; Clendening v. Hawk, 8 N.D. 419, 79 N.W. 878.
Right of property and possession, or right to possession, must concur. Davidson v. Waldron, 31 Ill. 120, 83 Am. Dec. 206; Forth v. Pursley, 82 Ill. 152; Owens v. Weedman, 82 Ill. 409; Montgomery v. Brush, 121 Ill. 513, 13 N.E. 230; Frink v. Pratt, 130 Ill. 327, 22 N.E. 819; 26 Am. & Eng. Enc. Law, 744; Union Stock Yard & Transit Co. v. Mallory, Son & Z. Co. 157 Ill. 554, 48 Am. St. Rep. 341, 41 N.E. 890.
Goods to be paid for in cash or by note, on arrival, do not prevent title from passing. 24 Am. & Eng. Enc. Law, 1061.
There was an assignment and delivery of the property, and it became the defendant's property. Glass v. Basin & B. S. Min. Co. 31 Mont. 21, 77 P. 302.
Plaintiff should be nonsuited, where it is shown that, prior to the commencement of action, he had parted with title to property involved. Hall v. Simmons, 125 Ga. 801, 54 S.E. 751; Link v. Jarvis, Cal. , 33 P. 206; McDermott v. Morris Canal & Bkg. Co. 38 N.J.L. 53; Jones v. Clark, 45 N.J.L. 437; Treadwell v. Tillis, 108 Ala. 262, 18 So. 886; Whitcomb v. Hungerford, 42 Barb. 177.
Action should have been for breach of contract. Central Gas & Electric Fixture Co. v. Sheridan, 1 Misc. 386, 22 N.Y.S. 76; Zrskowski v. Mach, 15 Misc. 234, 36 N.Y.S. 421; Kearney Mill. & Elevator Co. v. Union P. R. Co. 97 Iowa 719, 59 Am. St. Rep. 434, 66 N.W. 1059; Starr Bros. v. Stevenson, 91 Iowa 684, 60 N.W. 217; Kramer v. Messner, 101 Iowa 88, 69 N.W. 1145.
A complaint charging defendant with the receipt of money under an agreement which he afterwards refused to perform, and asking damages for the breach, does not state a cause of action sounding in tort. Link v. Jarvis, Cal. , 33 P. 206; Davis v. Thompson, 10 Sadler (Pa.) 563, 14 A. 169; Kinney v. South & North Ala. R. Co. 82 Ala. 368, 3 So. 113; McCormick v. Hadden, 37 Ill. 370; Burton v. Curyea, 40 Ill. 320, 89 Am. Dec. 350; Webster v. Granger, 78 Ill. 230; Tuxworth v. Moore, 9 Pick. 347, 20 Am. Dec. 479; Carter v. Willard, 19 Pick. 1; International & G. N. R. Co. v. Ogburn, 26 Tex. Civ. App. 217, 63 S.W. 1072; Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Benjamin, Sales, PP 311-329; Tufts v. Lawrence, 77 Tex. 529, 14 S.W. 165; Grant v. Walsh, 36 Wash. 190, 78 P. 787; Frech v. Lewis, 218 Pa. 141, 11 L.R.A. (N.S.) 948, 120 Am. St. Rep. 864, 67 A. 45, 11 Ann. Cas. 547; Hull v. Caldwell, 3 S.D. 451, 54 N.W. 100; 24 Am. & Eng. Enc. Law, 619; Voorhees v. Earl, 2 Hill, 288, 38 Am. Dec. 588; Cary v. Gruman, 4 Hill, 625, 40 Am. Dec. 299; Muller v. Eno, 14 N.Y. 597; Thornton v. Wynn, 12 Wheat. 183, 6 L.Ed. 595; Case v. Hall, 24 Wend. 102, 35 Am. Dec. 605; Taylor v. Saurman, 110 Pa. 3, 1 A. 40; Godwin v. Phifer, 51 Fla. 446, 41 So. 597; Harrington v. Rutherford, 38 Fla. 321, 21 So. 283.
The alleged rescission of the contract was ineffective because plaintiff failed to restore, or offer to restore, benefits had by him. Rev. Codes, § 5380.
There must be proof of the value of the property, at date of conversion. Towne v. St. Anthony & D. Elevator Co. 8 N.D. 200, 77 N.W. 608; First Nat. Bank v. Minneapolis & N. Elevator Co. 11 N.D. 280, 91 N.W. 436.
Declarations of a party are inadmissible in his favor; they are merely self-serving. Jones, Ev. 2d ed. pp. 298, 299, 336; Hammond v. Beeson, 112 Mo. 190, 20 S.W. 474; Fisher v. Meek, 38 Ill. 93; Cohn v. Heimbauch, 86 Wis. 176, 56 N.W. 638; Fearing v. Kimball, 4 Allen, 125, 81 Am. Dec. 693; David v. David, 66 Ala. 139; Miller v. State, 8 Gill, 141; Hood v. Hood, 2 Grant, Cas. 229; Gayle v. Bishop, 14 Ala. 552; St. Louis, A. & T. H. R. Co. v. Thomas, 85 Ill. 464; Merritt v. Wright, 19 La.Ann. 91; Taylor, Ev. P 585; Beaver v. Taylor, 1 Wall. 637, 17 L.Ed. 601; Milne v. Leisler, 7 Hurlst. & N. 786, 31 L. J. Exch. N. S. 257, 8 Jur. N. S. 121, 5 L. T. N. S. 802, 10 Week. Rep. 250.
W. C. Resser, for respondent.
There was no contract between the parties. A mere offer by one party and not accepted by the other party does not make a contract. Bieber v. Beck, 6 Pa. 198; McKinley v. Watkins, 13 Ill. 140; Esmay v. Gorton, 18 Ill. 483; Brown v. Rice, 29 Mo. 322; Tuttle v. Love, 7 Johns. 470; Demoss v. Noble, 6 Iowa 530; Corning v. Colt, 5 Wend. 253; Quick v. Wheeler, 78 N.Y. 300; Madan v. Sherard, 73 N.Y. 329, 29 Am. Rep. 153; Harlow v. Curtis, 121 Mass. 320; Smith v. Weaver, 90 Ill. 392; West v. First Presby. Church, 41 Minn. 94, 4 L.R.A. 692, 42 N.W. 922.
Where new terms are introduced, they constitute an offer on the other side, and leave the question open. Baker v. Holt, 56 Wis. 100, 14 N.W. 8; Ashcroft v. Butterworth, 136 Mass. 511; Stagg v. Compton, 81 Ind. 171; Bishop, Contr. P 323.
If applicant refuses to accept policy when issued, there is no completed contract of insurance. 25 Cyc. 714, and cases cited in note, 87.
Parol evidence is admissible to show application was filled up by agent, and that the answers of the applicant were falsified by the agent without applicant's knowledge. Johnson v. Dakota F. & M. Ins. Co. 1 N.D. 167, 45 N.W. 799.
FISK, J. GOSS, J., took no part in the decision.
Plaintiff seeks to recover damages for the alleged conversion of certain promissory notes of the face value of $ 4,458, and alleged to be worth that sum. The complaint is in the usual form, alleging ownership and right of possession in plaintiff of the notes in question on April 14, 1909, and that on such date the defendant, having such notes in his possession, unlawfully converted and disposed of the same to his own use, to plaintiff's damage in the sum aforesaid.
The answer puts in issue the allegation as to plaintiff's ownership and right to the possession of the notes on April 14, 1909, or at any subsequent date, and alleges ownership and possession of such notes in himself at all times subsequent to April 10, 1909. He also denies both the conversion and the value of the notes as alleged in the complaint. The case was tried to a jury, and a verdict returned in plaintiff's favor for the sum of $ 4,149.10. Thereafter defendant moved for judgment notwithstanding the verdict, or in the alternative for a new trial, which motion was denied, and he appeals both from the judgment and from the order denying such motion.
A brief statement of the facts out of which the litigation arose, and which statement we deem necessary to a proper understanding of the propositions of law involved, is as follows Plaintiff, a farmer residing near Walum in this state, sold his farming property preparatory to moving to New Mexico, and on and prior to April 10, 1909, the notes in controversy were left in defendant's bank for safekeeping, the defendant being a banker at Walum. The latter was also local agent for the Mutual Life Insurance Company of New York, and he and the plaintiff had various negotiations regarding an exchange of such notes for certain life insurance on plaintiff's life. These negotiations culminated in an agreement for an exchange of some of such notes for life insurance, and pursuant thereto plaintiff made a written application through the defendant for a $ 5,700 paid-up policy, in consideration for which he was to transfer to defendant a portion of the notes in controversy. Plaintiff desired to exchange all three of the notes for insurance, but defendant objected to one of the notes upon the alleged ground that it was of little or no value, but finally the parties effected a new agreement to supersede the first, whereby all the notes were to be transferred to defendant for another and larger policy, and a new application was signed by plaintiff in lieu of the former one. There is a square conflict in the testimony of the parties as to the terms of the new agreement, it being plaintiff's contention that this second application was signed in blank to be subsequently filled for the amount of the paid-up insurance which all the notes would purchase; while defendant contends that, at the time it was signed by plaintiff, the blank space in such application, for the purpose of designating the amount of the policy, was filled in for the sum of $ 77,000, and that...
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