Nichols & Shepard Co. v. First National Bank of Hillsboro
| Decision Date | 23 April 1897 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; McConnell, J.
Petition by the Nichols & Shepard Company against the First National Bank of Hillsboro. Judgment for defendant, and plaintiff appeals.
Affirmed.
William C. Resser, (Arthur B. Wright, of counsel), for appellant.
Carmody & Leslie, for respondent.
This action was in claim and delivery for the possession of three certain promissory notes that were in the hands of the defendant bank, and the title to which is claimed by the plaintiff. The case was tried to the court without a jury. The defendant prevailed. The case is brought here for trial de novo. We do not find it necessary, in the decision of the case, to follow the wide line of argument made by counsel. The facts, as we find them necessary for an understanding of the case, are as follows Some time in the month of May, 1895, the plaintiff, through its agent at Fargo, one Downer, entered into an arrangement with one Spearing, for the purchase by Spearing from the plaintiff of a steam threshing outfit. At that time a contract embracing an order for the machine, with the usual extended contract of warranty on the part of the plaintiff was signed by Spearing and delivered to the general agent. Spearing claimed, as he now swears, that, while the contract was placed in the possession of the general agent, it was with the express understanding that it should not be held or understood as a delivery, but that the contract was to be placed with the defendant bank, and not to be delivered until after the receipt and trial by Spearing of the threshing outfit. This agreement, it is claimed by plaintiff, was beyond the authority of the general agent, as clearly appeared by the terms of the instrument Spearing had signed. The consideration for the purchase of the threshing machine was the delivery by Spearing to plaintiff of a certain second-hand threshing engine then owned by Spearing, and three several notes, aggregating about $ 2,200, to be executed by Spearing. Subsequently, and in July, 1895, the threshing rig mentioned in the contract was forwarded by the plaintiff to Hillsboro, N. D., that being the residence of Spearing. When the property was tendered by the local agents of the plaintiff to Spearing, he refused to execute and deliver his notes for the purchase price until he should have tried the machine, in accordance with what he declared to be the understanding with the general agent. An agreement was reached between plaintiff's local agents and Spearing whereby Spearing, with one of the local agents, went to the defendant bank, where the three notes were filled out and signed by Spearing, and, in the presence of the local agent, delivered to the cashier of the bank, with instructions that the notes were not to be delivered until both parties so directed. The trial of the threshing rig by Spearing proving unsatisfactory to him, he returned the rig, and notified the cashier not to deliver said notes. Plaintiff demanded the notes of the bank, and, upon a refusal to deliver them to the plaintiff, this action was brought.
We shall not, in...
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