Plano Mfg. Co. v. Doyle

• Decision Date: 30 April 1908
• Citation: 116 N.W. 529,17 N.D. 386
• Parties: PLANO MFG. CO. v. DOYLE.
• Court: North Dakota Supreme Court

17 N.D. 386

116 N.W. 529

PLANO MFG. CO.

v.DOYLE.

Supreme Court of North Dakota.

April 30, 1908.

Syllabus by the Court.

The assumption by an agent of a debt due from a third party to the agent's principal, without authority from, or ratification by the latter, does not constitute payment.

While an action in which a jury trial was waived is still pending in the district court, that court has jurisdiction and power to correct its own errors, and may in the exercise of its discretion on notice and motion vacate its findings and judgment, and make new findings, and enter a new and different judgment.

Appeal from District Court, Foster County; E. T. Burke, Judge.

Action by the Plano Manufacturing Company against S. J. Doyle. Judgment for plaintiff. Defendant appeals. Affirmed.T. F. McCue, for appellant. Turner & Wright, for respondent.

SPALDING, J.

Action for a balance due plaintiff from defendant on account. Defense full payment alleged to have been made to one Otis as general agent of the plaintiff. Two questions are raised in this case. The first depends upon the facts, which are as follows: The defendant was indebted to the plaintiff. One Otis was the general agent of the plaintiff with authority to make collections. He personally purchased of the defendant his interest in a tract of Manitoba land for a sum sufficient to pay the debt of the defendant to plaintiff. It is not contended that he took the land for the plaintiff, but it is conceded that it was a personal purchase on his part, and that the defendant knew this. Otis gave the defendant a receipt in full for the plaintiff's claim as agent, and agreed to protect the defendant against any further demands on the part of the plaintiff for payment of the debt. No cash or equivalent changed hands or was produced. Otis testified that he kept in his bank account sufficient money to pay the claim to the plaintiff, but that he had a contingent claim against it which he intended to offset against this account, and therefore did not remit his own money to plaintiff in payment of defendant's debt, and that he bought the land for himself, and not for the company, and did not expect or intend to turn the land over to the company. It is contended that Otis received the money from himself individually to himself as general agent of the respondent, and that this had the same force and effect as though the respondent had received the same. No claim is made that the respondent ever ratified the transaction or accepted Otis individually in place of the appellant as its debtor. A jury was waived on the trial, and error is assigned in ordering and rendering judgment in favor of the respondent and against appellant. No authorities are cited by the appellant which appear direct in point.

Otis testified that he showed the money to the appellant at the time the transaction occurred, but that he did not pay it to him and then he pay it back; that appellant never paid him any part of the money, but subsequently on cross-examination stated that he did not know whether he showed Mr. Doyle the money or not. The only question on this point is whether the facts sustain the appellant's plea of payment. It appears to ...