Stewart v. Gregory, Carter & Co.
| Citation | 84 N.W. 553,9 N.D. 618 |
| Decision Date | 06 December 1900 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by J. W. Stewart against Gregory, Carter & Co. Judgment for plaintiff. Defendant appeals.
Affirmed.
S. G More and Tilly & McLeod, for appellant.
Miller & Miller, for respondent.
Plaintiff is a farmer, residing near Buffalo, in Cass county. The defendant is a corporation doing a grain commission business in the city of Duluth. On October 6, 1898, plaintiff loaded a certain car with wheat at said town of Buffalo, and billed the same to defendant at Duluth. This action is brought to recover the value of such car of wheat. The answer admits the formal parts of the complaint; admits the shipment of the wheat, and that the wheat so shipped was the property of the plaintiff; admits the receipt of the wheat by defendant, and its sale on plaintiff's account; and admits the value and the net proceeds as claimed. The sixth paragraph of the answer reads as follows: "Further answering said complaint, defendant says that upon the order of said plaintiff, and with his full knowledge and consent, it has fully paid for said wheat; that on or about the 7th day of October, 1898, the Bank of Buffalo, Buffalo, N.D., made a draft on defendant for the entire proceeds of said wheat, less said charges of $ 69.56 by direction and with the authority of said plaintiff, and that defendant accepted said draft, and paid the same in full." The sole issue, under the pleadings, was the question of payment. The jury found that issue in plaintiff's favor, and, a new trial being denied, defendant appeals, and assigns errors upon the rulings of the court in the admission of testimony, and also claims that the verdict is unsupported by the testimony in various enumerated particulars. It is undisputed that when the car of wheat was loaded the bill of lading was taken in plaintiff's name, and it was at once left at the Bank of Buffalo with the cashier, Mr. Batchelor. This was about 8 o'clock in the evening of said October 6th. On the day following, S. G. More, the managing officer of said bank, drew a draft upon defendant for the estimated value of the car of wheat, and signed plaintiff's name to the same by S. G. More, and attached the bill of lading thereto, and forwarded the same to defendant. The draft was promptly paid by defendant, and the proceeds remitted to S. G. More or the Bank of Buffalo. The defendant bases its allegation of payment upon two grounds: First, that S. G. More was authorized by the plaintiff, under the circumstances, to draw said draft and receive the proceeds; and, second, if not so authorized, yet the said proceeds were devoted to plaintiff's use and benefit, with his knowledge, and the act of Mr. More was thereby ratified.
This wheat was grown upon a certain quarter section of land which plaintiff held by contract of purchase from the Maryland Land Company. The purchase was on the crop-payment plan, and plaintiff was bound to deliver the one-third of the crop to said vendor. On the preceding spring the plaintiff had given the Bank of Buffalo a chattel mortgage upon two-thirds of the crop to be grown upon said tract of land. Mr. More testified that this mortgage was given to secure an existing indebtedness, while plaintiff testified it was also to secure future advances. The mortgage was not introduced. Prior to said October 6th the plaintiff had loaded two cars with wheat, grown upon said tract of land in said year, and had taken the bills of lading in the name of said bank, and delivered them to the bank. To exclude any appearance of actual authority upon the part of Mr. More to draw the draft upon defendant for the wheat in controversy plaintiff sought to show the terms of this contract of purchase of the land, and that Mr. More had full knowledge thereof, and hence must have known that the third car of wheat was not covered by the mortgage. Plaintiff was asked certain questions as to the terms of this contract. Objections thereto were improperly overruled, but they were immediately followed by the introduction of the contract, and there is no pretense that plaintiff misstated any of its terms; hence the error was harmless. Defendant, in its cross-examination of plaintiff,...
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