N. Trust Co. v. Havelock Equity Exch.

• Decision Date: 28 July 1924
• Citation: 51 N.D. 346,199 N.W. 763
• Parties: NORTHERN TRUST CO. v. HAVELOCK EQUITY EXCHANGE et al.
• Court: North Dakota Supreme Court

51 N.D. 346

199 N.W. 763

NORTHERN TRUST CO.

v.HAVELOCK EQUITY EXCHANGE et al.

Supreme Court of North Dakota.

July 28, 1924.

Syllabus by the Court.

Where the evidence in a case tried to a jury is such that the plaintiff is entitled to judgment as a matter of law, and it further is clear upon the record there is no reasonable probability that any evidence can be produced upon a retrial which will defeat plaintiff's right to recover such judgment, it is the duty of the trial court, upon proper motion on the part of the plaintiff, to order judgment in his behalf, notwithstanding a verdict in favor of the defendant.

Appeal from District Court, Hettinger County; Berry, Judge.

Action by the Northern Trust Company against the Havelock Equity Exchange and others. From a judgment for plaintiff, defendants appeal. Affirmed.Jacobsen & Murray, of Mott, and Harvey Miller, of New England, for appellants.

V. H. Crane, of Mott, and Pierce, Tenneson, Cupler & Stambaugh, of Fargo, for respondent.

CHRISTIANSON, J.

The plaintiff is a surety company organized under the laws of this state. The defendant Havelock Equity Exchange was (during the time involved in this controversy) a corporation organized under the laws of this state, and engaged in the business of a public warehouseman; and as such it operated an elevator for the storage, handling, and marketing of grain. The individual defendants are the directors of the Havelock Equity Exchange. In order to be licensed to carry on its business as a public warehouseman the Havelock Equity Exchange was required to furnish a bond in the sum of $5,000. On or about September 29, 1919, there was transmitted to the plaintiff an application for such warehouseman's bond. The application was signed by the Havelock Equity Exchange by its president and secretary and also by the individual defendants named in the title of this action. The concluding portion of the application, including the signatures, was in words and figures as follows, to wit:

“In consideration of the Northern Trust Company issuing the bond herein applied for, we do each hereby agree, warrant, and covenant with it that the foregoing statements are just, full, true, and complete expositions of all the facts and circumstances relative to the matters inquired about, and that the answers and representations are made the basis on which the said the Northern Trust Company becomes surety on the bond herein applied for, and we further undertake and agree, each for ourselves, our heirs, executors, assigns and successors in interest, jointly and severally, to pay the premium agreed upon for said bond; to comply with the conditions established by said company for its own protection, and which have been, or may hereafter be, set out in its by-laws or resolutions of its board of directors, especially waiving notice or knowledge of the same; to indemnify and to save harmless the said the Northern Trust Company from and against all loss, costs, suits, damages, counsel fees, and expense of whatever nature which said company may, for any cause, at any time, sustain or be put to, for or by reason or in consequence of said company having entered into said bond, or in any continuation or extension thereof; to pay said company upon demand any and all sums which it may in good faith pay, or cause to be paid to the beneficiary under said bond, or any continuation or extension thereof, upon an investigation which shall satisfy the officers of said company that it is liable for a loss under the conditions of the same; to pay all costs and expenses which said company may incur in obtaining a release or discharge as surety upon this bond herein applied for, or any continuation or extension thereof. This obligation shall be binding upon the principal on said bond, and also upon each and every individual signing this application personally.

Dated at Havelock, N. Dak. this 29th day of September, 1919. Havelock Equity Exchange [Full Name of Firm or Corporation], by C. L. Rafferty, President, and Theo. Gustensohn, Secretary. [Corporate Seal.] Joe Shauf, Personally. C. L. Rafferty, Personally. J. C. Miller, Personally. Theo. Guthensohn, Personally. John Adams, Personally.

Notice-If corporation, this application must be signed in the name of the corporation, by its president and secretary, and also by each of the officers and directors, personally. If a copartnership, this application must be signed in the name of the copartnership, and also by each of the partners personally.”

Pursuant to said application the plaintiff executed the public warehouseman's bond of the Havelock Equity Exchange; that is, it executed such bond as surety thereon. The bond was in the penal sum of $5,000, and conditioned that the Havelock Equity Exchange should fulfill, perform, and discharge its duties as public warehouseman and comply with all the rules and regulations of the state of North Dakota relative thereto, and should pay for all grain purchased and all sums for which said Havelock Equity Exchange should become liable upon warehouse receipts or storage tickets. Such bond was approved by the state inspector of grades, weights, and measures on November 20, 1919, and license was thereupon issued to said Havelock Equity Exchange. During the term of such license and bond the Havelock Equity Exchange became bankrupt. At the time of its failure there were outstanding and unredeemed storage tickets for grain stored by it of the value of approximately $15,000. The Havelock Equity Exchange having failed to redeem these storage tickets upon demand, the holders thereof made demand for their redemption upon the plaintiff Northern Trust Company, as surety upon said warehouseman's bond. Thereafter in July, 1922, an action was brought for and on behalf of the holders of such storage tickets to recover upon said bond. On September 14, 1922, an order was made in such action, directing the plaintiff, The Northern Trust Company, to deposit the said sum of $5,000, with a depositary designated by the court to be held and distributed to the holders of said outstanding storage tickets in such amounts as the court should, by the judgment entered in said action, determine they were entitled to. The plaintiff, the Northern Trust Company, deposited said sum of $5,000, as directed by said order on October 10, 1922. Thereafter it demanded of the defendants that they repay said money to it in accordance with the indemnity agreement. The defendants failed and refused to make such payment, whereupon the plaintiff instituted this action to recover said sum of $5,000 and interest.

In the answer interposed by the individual defendants in this action they admit that the above-named individual defendants, acting in their representative capacity as...