Stockton v. Turner
| Decision Date | 11 May 1915 |
| Citation | 153 N.W. 275,30 N.D. 641 |
| Court | North Dakota Supreme Court |
Rehearing denied June 7, 1915.
From a judgment of the District Court of Foster County, Nuessle Special J., defendants appeal.
Affirmed.
A. C Lacy and John Carmody, for appellants.
Every contract on a negotiable instrument is incomplete and revokable until delivery of the instrument for the purpose of giving it effect. Anderson v. Goodwin, 125 Ga. 663, 54 S.E. 679; Ayres v. Milroy, 53 Mo. 516, 14 Am. Rep. 465; 16 Cyc. 578, 579; Pepper v. State, 22 Ind. 399, 85 Am. Dec. 430; Dixon v. Bristol Sav. Bank, 102 Ga. 461, 66 Am. St. Rep. 193, 31 N.E. 96; Miller v. Sears, 91 Cal. 282, 25 Am. St. Rep. 176, 27 P. 589; Wheelwright v. Wheelwright, 2 Mass. 447, 3 Am. Dec. 66; Riggs v. Trees, 120 Ind. 402, 5 L.R.A. 696, 22 N.E. 254; Clements v. Hood, 57 Ala. 459; Hamill v. Thompson, 3 Colo. 518, 14 Mor. Min. Rep. 696; Hansford v. Freeman, 99 Ga. 376, 27 S.E. 706; Mays v. Shields, 117 Ga. 814, 45 S.E. 68; Daniels v. Gower, 54 Iowa 319, 3 N.W. 424, 6 N.W. 525; Daggett v. Daggett, 143 Mass. 516, 10 N.E. 311; Davis v. Kneale, 103 Mich. 323, 61 N.W. 508; Hoit v. McIntire, 50 Minn. 466, 52 N.W. 918; Matteson v. Smith, 61 Neb. 761, 86 N.W. 472; United States v. Payette Lumber & Mfg. Co., 198 F. 881; Boswell v. Pannell, Tex. Civ. App. , 146 S.W. 233; Carpenter v. Carpenter, 141 Wis. 544, 124 N.W. 488.
There was no meeting of minds as to the amounts that were due under exhibit 1. It is the requisite of all contracts that the minds of the contracting parties must meet and consent to the same thing and at the same moment of time. Newlin v. Prevo, 90 Ill.App. 515; Peerless Glass Co. v. Pacific Crockery & Tinware Co., 121 Cal. 641, 54 P. 101; Wagner v. Egleston, 49 Mich. 218, 13 N.W. 522; Board of Trade v. DeBruyn, 138 Mich. 187, 101 N.W. 262; Green v. Cole, 103 Mo. 70, 15 S.W. 317; Sutter v. Raeder, 149 Mo. 297, 50 S.W. 813; Brophy v. Idaho Produce & Provision Co., 31 Mont. 279, 78 P. 493; Krum v. Chamberlain, 57 Neb. 220, 77 N.W. 665; McGavock v. Morton, 57 Neb. 385, 77 N.W. 785; Columbus, H. Valley & T. R. Co. v. Gaffney, 65 Ohio St. 104, 61 N.E. 152; Foshier v. Fetzer, 154 Iowa 147, 134 N.W. 556; Jules Levy & Bro. v. A. Mautz & Co., 16 Cal.App. 666, 117 P. 936; Cunningham Mfg. Co. v. Rotograph Co., 30 App. D. C. 524, 15 L.R.A. (N.S.) 368, 13 Ann. Cas. 1147; Luckey v. St. Louis & S. F. R. Co., 133 Mo.App. 589, 113 S.W. 703; Miller v. Sharp, 52 Ind.App. 11, 100 N.E. 108; Elks v. North State L. Ins. Co., 159 N.C. 619, 75 S.E. 808.
Edward P. Kelly, for respondent.
Formal delivery of a deed to the grantee in person is unnecessary. If the grantor in the deed intends, when executing it, to be understood as delivering it, that is sufficient. The intention of the party is the controlling element. Walker v. Walker, 42 Ill. 311, 89 Am. Dec. 445; Rushin v. Shields, 11 Ga. 636, 56 Am. Dec. 436; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147.
Leaving a deed duly acknowledged, signed, and sealed in the possession of the officer who takes the acknowledgment, without the grantor doing or saying anything to qualify the delivery, is not a mere delivery in escrow. Blight v. Schenck, 10 Pa. 285, 51 Am. Dec. 478; Lady Superior of Cong. Nunnery v. McNamara, 3 Barb. Ch. 375, 49 Am. Dec. 184; Doe ex dem. Newlin v. Osborne, 49 N. C. (4 Jones, L.) 157, 67 Am. Dec. 269; Burke v. Adams, 80 Mo. 504, 50 Am. Rep. 510.
The unauthorized delivery of a deed may be ratified by the grantor, as by an acceptance of the consideration from the grantee. Van Amringe v. Morton, 4 Whart. 382, 34 Am. Dec. 517.
Where parties agree upon the general terms of a contract, they are bound by it, although their understanding of its terms is not precisely the same. Neufville v. Stuart, 1 Hill, Eq. 159.
Whether the minds of the parties met is a question of fact. Thurston v. Thornton, 1 Cush. 89; Winchester v. Howard, 97 Mass. 304, 93 Am. Dec. 93.
Whatever a man's real intention may be, if he so conducts himself that a reasonable man would believe he was assenting to the terms of the other party, and upon such honest belief such persons contract in reference thereto, he will be bound by such conduct. Phillip v. Gallant, 62 N.Y. 256; Smith v. Hughes, L. R. 6 Q. B. 597, 40 L. J. Q. B. N. S. 221, 25 L. T. N. S. 329, 19 Week. Rep. 1059.
This is an action for the foreclosure of a real estate mortgage upon certain lands in Foster county. The mortgage bears date February 10, 1912, and secures the payment of a note dated on the same day in the sum of $ 2,883.75, bearing 7 per cent interest. The mortgage was signed by all four defendants named in the title of this action, and the note was signed by the defendants Turner and Caldwell, and payment thereof guaranteed by the defendants Gorthy and Lindberg.
The complaint is in the usual form. The answer admits the execution of the note and mortgage, but alleges that the same were never delivered to the plaintiff, but were placed in the Stutsman County Bank at Courtney, North Dakota, to be delivered to the plaintiff only when certain things should be done by one Coffey, the agent of the plaintiff. It is further alleged that these things were never done, and that the Stutsman County Bank never had authority to deliver the note and mortgage, and that for that reason they were as a matter of fact never delivered to the plaintiff; and, also, that certain payments were made by the defendants, and that the note and mortgage involved in this action are for a larger sum than that which defendants owed to plaintiff at the time the note and mortgage were executed. The plaintiff obtained a judgment in the district court, and the defendants appeal, and ask for trial de novo in this court. A considerable portion of the material facts are not in dispute, but there is some conflict in the testimony on certain incidental questions.
The note and mortgage involved in this action were given as partial payment upon the balance due on a certain contract, or contracts, for the sale of land in Foster county. On April 12, 1909, one William Jones sold a certain 360-acre tract of land in Foster county to the four defendants named in the title of this action, for the agreed price of $ 10,800. At the time of the sale the defendants paid $ 2,000 in cash, leaving a balance of $ 8,800 remaining unpaid on the contract, payable as follows: $ 1,800 on December 24, 1909; $ 1,000 on December 24, 1910; and $ 6,000 on December 24, 1911. Such deferred payments were evidenced by promissory notes drawing 7 per cent interest, payable on the 24th of December of each year. This contract was offered in evidence on the trial of the action as Exhibit "1," and will be so denominated in our consideration thereof in this opinion. On the 16th day of August, 1910, William Jones, the vendor in Exhibit "1," purchased a 320-acre tract of land from the plaintiff for the agreed price of $ 12,680. The contract between the plaintiff, Stockton, and Jones, was also offered in evidence upon the trial as Exhibit "E," and will be considered under this designation. Jones at that time assigned to the plaintiff, Stockton, the contract, Exhibit "1," together with the notes mentioned therein, as collateral security for the payments due from Jones to Stockton. The only payments made upon Exhibit "1" and the notes therein described prior to the time of the assignment to the plaintiff, Stockton, were the first payment of $ 2,000, and $ 1,362.20 paid to Jones on December 24, 1909.
The defendants, thereafter, also made the following payments to Judge Coffey, who at that time was a practising attorney at Courtney, and represented the plaintiff in this action, to wit, $ 128.40 on September 8, 1910; $ 852 on December 24, 1910; $ 800 on July 24, 1911. These were all the payments made until April, 1912. On or about February or March, 1912, the whole balance of the purchase price under Exhibit "1," including the final payment of $ 6,000 was past due; and some of the payments under Exhibit "E" were also past due. According to the computation of the defendants' attorneys, furnished in a supplemental brief filed in this court, there was on the 6th day of April, 1912, due upon Exhibit "1" and the notes covered thereby, a total sum of $ 7,851.93. Shortly prior to this time the plaintiff's agent, Coffey, was appointed judge of the fifth judicial district in this state, and found it necessary to remove his residence from Courtney to Jamestown, and he thereupon made several efforts to get the defendants together to make a settlement of their equitable interests in the contracts. Prior to this time the defendant Archie J. Gorthy had acquired from William Jones the interest of Jones in the contract, Exhibit "E," and the premises covered thereby. It appears that during February or March, 1912, at the time these negotiations were had, it was suggested by Coffey that these defendants obtain loans on the various lands covered by these contracts for the purpose of paying off encumbrances then outstanding against these lands, and that the balance of the money, if any, realized from such loans, be paid over to Mrs. Stockton to apply upon the balance due her. Judge Coffey testifies that he also suggested that they give a second mortgage upon one of the tracts and obtain some additional money to be paid to Mrs. Stockton, and that she take a second mortgage on the other tract for whatever balance might remain due her. At this stage of the proceedings, Mr. Nichols, president of the Stutsman County Bank at Courtney, was called in by the parties.
It was thereupon agreed that Judge Coffey should procure a deed from Jones for the land described in Exhibit "1," and a deed...
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