Van Eman v. Stanchfield

• Decision Date: 01 January 1868
• Citation: 13 Minn. 70
• Parties: JOSEPH VAN EMAN v. SAMUEL STANCHFIELD and others.
• Court: Minnesota Supreme Court

Page 70

13 Minn. 70

JOSEPH VAN EMAN

v. SAMUEL STANCHFIELD and others.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Hennepin county, denying a new trial.

D. A. Secombe, for appellant.

F. R. E. Cornell and Wm. Lochren, for respondents.

WILSON, C. J.

In March, 1858, one S. B. Olmstead bargained to these defendants a number of pine saw logs, in consideration of which they agreed to "assume and take up" a promissory note for $1,000, which Olmstead had before made to J. and A. J. Chapman, and which was then in the hands of Alexander Ferguson. The agreement entered into with reference to the payment of the said note was reduced to writing, and in the following words:

"This agreement, made and entered into this day at St. Anthony, March 18, 1858, between S. B. Olmstead, of the first part, and Stanchfield and Brown and John Dudley, of the second part: whereas, the party of the first part has this day sold all his logs and all the logs he controls from St. Paul to head of Lake Pepin, or that may pass St. Paul through the year 1858, except what logs of his are now in Lake Pepin boom, unto the party of the second part, at the rate of $4.50 per thousand. And it is further agreed by the party of the second part to make payment as follows, viz.: First, to assume and to take up the following note given by S. B. Olmstead to J. and A. J. Chapman, dated August 13, 1857, for $1,000, made payable at the banking house of Bostwick, Pease & Co., now in the hands of Alexander Ferguson; also the interest on said note, and the same to be paid on the first day of December, 1858. It is further agreed after the above note has been paid, if there is any more due the first party from the second party, it shall be paid as follows, viz.: in logs delivered at Red Wing, not rafted, at the rate of seven dollars per thousand, or at the foot of Lake Pepin boom, rafted, with plugs and lock-downs, at the rate of eight dollars per thousand, the same to be put in running order, with oar stems and oar blades, etc.

"It further agreed that if the second party does not receive of the first party logs enough to cover the first-named payment of note and interest, that the party shall turn out to the party of the second part logs enough at other places to cover the full amount of said note and interest due December, 1858.

                                                "S. B. OLMSTEAD
                                                "STANCHFIELD & BROWN
                                                "JOHN DUDLEY
                "Witness
                    "GEO. S. BRADFORD
                    "ALEXANDER FERGUSON."
                

At the same time, and as a part of the same transaction, the defendants executed and delivered to Ferguson an agreement in writing in the following words:

"Whereas, S. B. Olmstead has this day, March 18, 1858, sold and entered into a contract with Stanchfield & Brown and John Dudley for all his logs from St. Paul to head of Lake Pepin, the said Stanchfield & Brown and John Dudley have agreed to assume and pay a certain note given to A. and A. J. Chapman by S. B. Olmsted, now held by Alexander Ferguson, for $1,000; and we have agreed to pay the said note to Alexander Ferguson on the first day of December, 1858, without interest after this date, (March 18, 1858,) to December 1, 1858; and if not paid at maturity, we agree to pay the said Ferguson 1 per cent. per month until paid.

                                                 "STANCHFIELD & BROWN.
                                                 "JOHN DUDLEY."
                

The first above-mentioned agreement and the Olmstead note of $1,000 there referred to were assigned by Ferguson to the plaintiff, July 7, 1862. The assignment was in writing, under seal, and reads:

"For value received I hereby sell, transfer, and assign unto Joseph Van Eman the original contract, of which the within is a copy, together with the $1,000 note therein mentioned, and all my right, title, and interest therein and thereto. In witness whereof I have hereunto set my hand and seal this July 7, 1862.

                                          "ALEXANDER FERGUSON. [Seal.]
                

"In presence of D. A. SECOMBE."

The second above-mentioned agreement and the Olmstead note were by Ferguson assigned to the plaintiff, August 14, 1861, which assignment was also in writing, under seal, and in the following language:

"For value received I hereby sell, assign, and transfer unto Joseph Van Eman the above contract, and the note of $1,000 therein mentioned, and all my right, title, and interest therein and thereto, and I hereby authorize the said Van Eman, in my name, or otherwise, but at his own expense, to sue for and collect the money due upon the same.

                                          "ALEXANDER FERGUSON. [Seal.]
                

"Dated August 14, 1861.

"In presence of D. A. SECOMBE."

This action is brought to recover the amount of the Olmstead note, with interest. One issue in the case is the ownership of this note by the plaintiff. It appears that it was made payable to the order of J. and A. J. Chapman, and that in December, 1858, it was by the payees delivered, not indorsed, to Ferguson as collateral security for the payment of a note held by him against them for the sum of $444.

It does not appear that this last-mentioned note was, or ever has been, sold or legally transferred to the plaintiff by Ferguson. There is some evidence from which at first sight it would seem a jury might infer such transfer, but on looking at all the evidence on this point we think it entirely insufficient to justify such inference.

The written assignments above set out seem to contain the entire...