Skinner v. First Nat. Bank & Trust Co. of Watertown

• Decision Date: 12 August 1933
• Docket Number: No. 7436.,7436.
• Citation: Skinner v. First Nat. Bank & Trust Co. of Watertown, 61 S.D. 481, 249 N.W. 821 (S.D. 1933)
• Court: South Dakota Supreme Court
• Parties: SKINNER v. FIRST NAT. BANK & TRUST CO. OF WATERTOWN.

61 S.D. 481

249 N.W. 821

SKINNER

v.FIRST NAT. BANK & TRUST CO. OF WATERTOWN.^a1

No. 7436.

Supreme Court of South Dakota.

August 12, 1933.

Appeal from Circuit Court, Codington County; W. N. Skinner, Judge.

Action by James A. Skinner against the First National Bank & Trust Company of Watertown and others. From a judgment for named defendant and from an order denying new trial, plaintiff appeals.

Reversed.

C. R. Jorgenson, of Watertown, for appellant.

Case & Case, of Watertown, for respondent.

WARREN, Judge.

The appellant for twenty-seven years owned and operated a general trucking business in Watertown, S. D., was adjudged insane, committed to the state hospital at Yankton, S. D., in April, 1930, spent some three or four months there, and was discharged on the 28th day of August, 1930. Upon plaintiff's return to Watertown, he found that his business had been sold to Jankord and Nichols. The defendants Jankord and Nichols having refused to return the business to plaintiff on his demand, plaintiff brought suit. Judgment on a directed verdict by the court was entered in favor of the defendant First National Bank & Trust Company. Plaintiff has appealed from the judgment and order denying new trial.

Appellant contends that he was the sole owner of personal property consisting of trucks, moving pads, office equipment, and various other articles used in connection with his draying business, all of the value of $2,100; that on or about the 1st day of August, 1930, defendants unlawfully took and carried away said property and converted the same to their use, to the damage of the plaintiff in the sum of $2,100; that during plaintiff's absence at the state hospital his son, Steven, entered into an agreement with the defendants to convey plaintiff's property to said defendants, and that said son had no authority to enter into such an agreement; that upon his return he made demand on the defendants through a letter to Carl Odegaard for the return of his property, but that they put him off with excuses and promises that they would settle with him for his property, and that he therefore did not take immediate action to compel such settlement; that on January 31, 1931, plaintiff was called to the defendant bank by Carl Odegaard, an officer of said defendant bank, and asked to sign a transfer of title to the trucks so that licenses could be secured for said trucks; that said Carl Odegaard told plaintiff that by his signing said transfers plaintiff would in no wise waive his rights to demand a settlement for his property; that, if plaintiff failed to sign transfers, the business would be greatly damaged by the necessity of having to lay up the trucks until licenses could be secured; that Carl Odegaard assured plaintiff everything would be all right, and that, if he would sign said transfers, he (Odegaard) would see that plaintiff got paid for his business; that plaintiff would not have signed said transfers had he thought it would interfere with his getting back his trucking business; that plaintiff relied on Odegaard's statements; and that said Odegaard made such statements for the purpose of inducing this plaintiff to act thereon.

That the respondent First National Bank & Trust Company held a mortgage on appellant's property is admitted by both parties to this action, and the testimony shows that at the time appellant went to Yankton that there was still due and owing to the defendant bank the sum of $500. There is some evidence which tends to show that the respondent bank and trust company attempted to sell appellant's property after he left for Yankton, although respondent had not foreclosed on the property. The respondent bank contends that through its agent, Carl Odegaard, it merely tried to ascertain what said property would bring if foreclosed upon, and that it did not try to sell the property. Testimony in appellant's brief is to the effect that Carl Odegaard called on various men in Watertown to learn if they would be interested in purchasing the business of the Watertown Transfer & Storage Company, and also that it was through Odegaard that Jankord and Nichols made the purchase of said business. The respondent insists that Carl Odegaard merely acted as scrivener for the other two respondents at the time of the transaction, and that he merely drew up the papers which conveyed the property from appellant to Jankord and Nichols; and contends that said bank and trust company should not be made a party to this case or be held liable simply because its officer, Carl Odegaard, acted as scrivener during the transaction. However, the undisputed testimony is that, after the contract had been entered into, the proceeds of said transaction were given to Odegaard and were to be applied on the appellant's indebtedness to respondent bank and trust company. Appellant received none of the proceeds of said transaction nor was he paid the remainder of the purchase price.

[1] The court having directed a verdict in favor of the defendant bank, and having submitted the question of conversion and amount of damages as to the other two defendants, the weighing of certain testimony becomes quite material. The record contains certain testimony which seems to us to support appellant's contention that there was a sharp conflict in the testimony, and that it was for the jury to say whether or not the respondent bank participated in the conversion. Scattered excerpts disclose conflicting testimony as follows:

Steven Skinner: “Carl Odegaard came down there and threatened to foreclose. I did not know what else to do, and he talked with Nichols and Jankord about them buying out the business, taking the business, and then Nichols and Jankord would pay the bank. I did not know what else to do so I finally came to that, and they agreed to take it over and arranged for a meeting one night to do the business, and we all met there and Carl Odegaard brought the papers along, and they were signed and the business turned over to Nichols and Jankord. He (Odegaard) made the suggestion that Nichols and Jankord might take over the business and he also suggested that the Dakota Warehouse might take over the business; might take the trucks and the mortgage and keep on with the business as we had been doing. Prior to the time the deal was made I met down in the First National Bank. I was called up there one day. I believe it was Odegaard who called. When I got there I saw two fellows from the Dakota Warehouse Company, Mr. Marks and Mr. Hannum. Carl was talking with them about taking over the--having them take over the trucks. I mean Carl Odegaard, when I refer to Carl. Short time thereafter deal was closed with Nichols and Jankord. Nichols and Jankord and Carl Odegaard and myself were present. Carl Odegaard brought some papers, some to sign up transferring the Watertown Transfer & Storage Company to Nichols and Jankord. I had had no talk with him about fixing out papers. I did not have anything to do with fixing the papers, but...