Paulson v. The Nichols & Shepard Company
| Decision Date | 21 October 1899 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; Pollock, J.
Action by John E. Paulson and another, as co-partners, against the Nichols & Shepard Company. From a judgment directing verdict for defendant, plaintiffs appeal.
Affirmed.
Carmody & Leslie, for appellants.
W. C Resser and Mills, Resser & Mills, for respondent.
This case presents some very unusual practice. Plaintiffs and appellants are here claiming a money judgment against the defendant and respondent, and allege as a basis of recovery that, in 1895, the respondent brought an action in claim and delivery against appellants to recover possession of a certain steam engine; that in that action the engine was taken from the possession of the appellants, and delivered to respondent; that the trial of the action resulted in favor of the appellants; that appellants recovered judgment for $ 50 damages and certain costs, and the judgment also provided that appellants recover from respondent "that certain Buffalo Pitts sixteen horse power steam engine number 1890," or, if the same could not be delivered in as good condition as the same was at the time of the taking appellants should recover from respondent the sum of $ 600 with interest, etc.; that subsequently the respondent here appealed that case to the Supreme Court, where it was affirmed, and in due time the remittitur was sent down. Thereafter this respondent paid the damages and costs, and tendered the engine to appellants, but appellants refused to receive the same, because it was not in as good condition as when taken from them. They then issued execution on the judgment, reciting its terms, and directing the sheriff to return the engine to appellants if the same could be returned in as good condition as when taken from them and, if not, then to satisfy the execution from respondent's personal property. The sheriff seized the engine, but made return that he could not return it to appellants in as good condition as when taken from them, and thereupon he proceeded to sell the engine under the execution, and applied the proceeds thereon, and returned the same satisfied protanto. The complaint alleges that the said engine, when seized in the original action, was of the value of $ 600, as shown by the pleadings in that case and found by the Court; that when the return of the same was tendered, and when it was seized by the sheriff, it was of the value of $ 200, and no more; that respondent had damaged the same after the trial of the original action in the District Court, and before the same was tendered to appellants. Judgment is asked for the sum of $ 400, with interest and costs. The answer tenders no issue of fact, save as to the question of damages. There was a trial...
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