Winkel v. Atlas Lumber Company, a Corporation
| Decision Date | 19 March 1917 |
| Court | North Dakota Supreme Court |
Rehearing denied April 24, 1917.
Appeal from District Court of Adams County, Hon. W. C. Crawford Judge.
Reversed.
Judgment reversed and judgment entered in favor of the defendant notwithstanding the verdict.
Flynn & Traynor, for appellant.
The promise of one to answer for the debt of another is not an original promise, and is within the Statute of Frauds, and must be in writing. N.D. Comp. Laws, § 5888.
An agent acting under a general grant of power has no authority to enter into a contract of guaranty, and it is not binding upon his principal unless its acceptance is communicated to the principal. 2 C. J. 665; N.D. Comp. Laws, §§ 6653, 6656.
The acts of a special agent, under special and limited written authority, outside of such authority, do not bind his principal, unless all the facts are communicated to the principal and followed by ratification or the acceptance and retention of substantial benefits by the principal. Such a contract is for the court to construe, and not for the jury. Queen City F. Ins. Co. v. First Nat. Bank, 18 N.D 603, 22 L.R.A.(N.S.) 509, 120 N.W. 545; Jones, Ev. § 172, and cases cited.
"Where the authority is conferred in writing, the nature and extent thereof are questions of law for the court, and should not be submitted to the jury." 2 C. J. 964; Sharp v. Kilborn, 64 Ore. 371, 130 P. 735; Williamson v. North Pacific Lumber Co. 38 Ore. 560, 63 P. 16, 64 P. 854; Anderson v. Adams, 43 Ore. 621, 74 P. 215; Atwood v. Rose, 32 Okla. 355, 122 P. 929; Sullivant v. Jahren, 71 Kan. 127, 79 P. 1071; Philadelphia Mortg. & T. Co. v. Hardesty, 68 Kan. 683, 75 P. 1115; Cain Bros. Co. v. Wallace, 46 Kan. 138, 26 P. 445.
An agent can never have authority, either actual or ostensible, to do an act which is, and is known or suspected by the persons with whom he deals to be, a fraud upon the principal. Comp. Laws 1913, § 6327; 2 C. J. 576.
It is the duty of one dealing with a known agent of another to ascertain the power and authority of the agent to act in any given matter, and he fails to do so at his own peril. Comp. Laws 1913, § 6342; 2 C. J. 559, 583, 585; Lovett, H. & P. Co. v. Sullivan, 189 Mass. 535, 75 N.E. 738; Blackmer v. Summit Coal & M. Co. 187 Ill. 32, 58 N.E. 289; Siebold v. Davis, 67 Iowa 560, 25 N.W. 778; Robinson v. American Fish & Oyster Co. 17 Cal.App. 212, 119 P. 388; Schaeffer v. Mutual Ben. L. Ins. Co. 38 Mont. 459, 100 P. 225; Morris v. Ewing, 8 N.D. 99, 76 N.W. 1047; Corey v. Hunter, 10 N.D. 12, 84 N.W. 570; Rounseville v. Paulson, 19 N.D. 466, 126 N.W. 221; Lederer v. Union Sav. Bank, 52 Neb. 133, 71 N.W. 954; Bryant v. Bank of Commerce, 95 Wis. 476, 70 N.W. 480; Hoyer v. Ludington, 100 Wis. 441, 76 N.W. 348; Godfrey v. Schneck, 105 Wis. 568, 81 N.W. 656; J. I. Case Threshing Mach. Co. v. Eichinger, 15 S.D. 530, 91 N.W. 82; Jasper v. Hazen, 2 N.D. 401, 51 N.W. 583; Elder v. Stuart, 85 Iowa 690, 52 N.W. 660; Strickland v. Council Bluffs Ins. Co. 66 Iowa 466, 23 N.W. 926; Iverson v. Metropolitan L. Ins. Co. 151 Cal. 746, 13 L.R.A.(N.S.) 866, 91 P. 609; Brown v. Grady, 16 Wyo. 151, 92 P. 622; Williams v. Kerrick, 105 Minn. 254, 116 N.W. 1026; Billings v. Morrow, 7 Cal. 171, 68 Am. Dec. 235; McIntosh-Huntington Co. v. Rice, 13 Colo.App. 393, 58 P. 358; Peddicord v. Berk, 74 Kan. 236, 86 P. 465; Brown v. Gilpin, 75 Kan. 773, 90 P. 267; Halsell v. Renfrow, 14 Okla. 674, 78 P. 118; 2 Ann. Cas. 286; Monson v. Kill, 144 Ill. 248, 33 N.E. 43; Hatch v. Taylor, 10 N.H. 538.
And where the principal has innocently received benefits under such a contract, and, before learning the true state of facts, has put it beyond his power to return or restore the benefits received, or if, without his fault, conditions are such that he cannot be placed in statu quo or repudiate the entire transaction without loss, then there is no ratification. 2 C. J. 496; Comp. Laws 1913, § 6331; Collateral Loan Co. v. Sallinger, 195 Mass. 135, 80 N.E. 811; Billings v. Morrow, 7 Cal. 176, 68 Am. Dec. 235; Halsell v. Renfrow, 14 Okla. 674, 78 P. 118, 2 Ann. Cas. 286; Davis v. Talbot, 137 Ind. 235, 36 N.E. 1098; Roberts v. Rumley, 58 Iowa 301, 12 N.W. 323; Shull v. New Birdsall Co. 15 S.D. 8, 86 N.W. 654; Jewell Nursery Co. v. State, 5 S.D. 623, 59 N.W. 1025; Moyle v. Congregational Soc. 16 Utah 69, 50 P. 806; Nichols v. Bruns, 5 Dak. 28, 37 N.W. 752; Martinson v. Kershner, 32 N.D. 46, 155 N.W. 37.
A person cannot be considered a party to an action unless he is properly served with process and brought into court. The mere naming him as a defendant is not enough. Hicks v. Besuchet, 7 N.D. 429, 66 Am. St. Rep. 665, 75 N.W. 793; 32 Cyc. 492, 496, and the cases cited.
It is for the court to determine from the record of an action in a foreign jurisdiction, when offered in evidence here, whether or not a person was a party to such foreign action, and such question should not be submitted to the jury. Queen City F. Ins. Co. v. First Nat. Bank, 18 N.D. 603, 22 L.R.A.(N.S.) 509, 120 N.W. 545; 38 Cyc. 1511.
The question of the legal effect and sufficiency of the pleadings is held to be a question of law for the court, so also whether a failure to serve process has worked a discontinuance of an action. 38 Cyc. 1512, 1522, 1527, note 51, 1528, note 41.
P. D. Norton and C. M. Parson (Langer & Nuchols of counsel) for respondent.
The plaintiff shows that in 1911 he joined with defendant in an attachment suit against one Hirschmann, each agreeing to pay an apportionate share of the cost. The attachment was levied. Then settlement was made, and each party received full payment of his claim, with costs. The claim of the plaintiff was $ 51,50, and that of defendant was $ 765.50. Some two years after the attachment suit had been settled, an action was commenced in the Kossuth county circuit court of Iowa to recover $ 5,000 as real and exemplary damages for the alleged conversion of certain personal property taken in the attachment suit and transferred by bill of sale to the plaintiff. The claim was that the bill of sale was merely a security, and that the plaintiff in this action had wrongfully sold and converted the property. Without in any manner consulting the Atlas Lumber Company or giving them any notice of the Iowa action, the plaintiff voluntarily went to Iowa as a witness. Then a summons was served on him. The service was at once declared void on a showing that the plaintiff in this action merely went to Iowa as a witness in the case there pending. The Iowa action amounted to nothing and it was dismissed. However, the plaintiff avers that in this Iowa action he paid out necessary attorneys' fees and expenses, amounting to $ 821.18, and that the apportionate share of such expense justly due and owing from the defendant is the sum of $ 769.50 and interest.
It seems the trial court submitted all questions of law and fact to the jury, and they found a verdict against the defendant for $ 635. The defendant appeals...
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