Wood v. Pehrsson

• Decision Date: 01 April 1911
• Citation: 130 N.W. 1010,21 N.D. 357
• Court: North Dakota Supreme Court

130 N.W. 1010

21 N.D. 357

A. E. WOOD
v.
MARY U. PEHRSSON, Lottie E. Pehrsson, Gustave Victor E. Pehrsson, Peter Adolfus Johannes Pehrsson, Frederick Daniel Pehrsson, and Mary U. Pehrsson, Executrix of the Last Will and Testament of Gustaveus A. Pehrsson, Deceased

Supreme Court of North Dakota

April 1, 1911

Appeal from District Court, Cass county; E. B. Goss, Judge.

Action by A. E. Wood against Mary U. Pehrsson and others. Judgment for defendants, and plaintiff appeals.

Reversed with directions.

Judgment vacated.

Engerud, Holt, & Frame, for appellant.

An agreed account cannot be impeached except for fraud, mutual mistake, undue influence, or duress. Montgomery v. Fritz, 7 N.D. 348, 75 N.W. 266; Lay v. Emery, 8 N.D. 515, 79 N.W. 1053; Hendy v. March, 75 Cal. 566, 17 P. 702; Klauber v. Wright, 52 Wis. 303, 8 N.W. 893; Christofferson v. Howe, 57 Minn. 67, 58 N.W. 830; Porter v. Price, 26 C. C. A. 70, 49 U. S. App. 295, 80 F. 655; Long-Bell Lumber Co. v. Stump, 30 C. C. A. 260, 57 U. S. App. 546, 86 F. 574; Chubbuck v. Vernam, 42 N.Y. 432; 1 Cyc. Law & Proc. 454, and note 88.

It is immaterial that the relation between the parties is a fiduciary one. Lay v. Emery, 8 N.D. 515, 79 N.W. 1053; Hoyt v. McLaughlin, 52 Wis. 280, 8 N.W. 889; Philips v. Belden, 2 Edw. Ch. 1; Moses Bros. v. Noble, 86 Ala. 407, 5 So. 181; Paulling v. Creagh, 54 Ala. 647.

Check stub entries made in the ordinary course of business, known to be correct at the time, are competent to refresh witness's recollection, and are admissible as independent evidence. 1 Wigmore, Ev. Secs. 735, 736; Raynor v. Norton, 31 Mich. 210; AEtna Ins. Co. v. Weide, 9 Wall. 677, 19 L.Ed. 810; Merrill v. Ithaca & O. R. Co. 16 Wend. 586, 30 Am. Dec. 130; Guy v. Mead, 22 N.Y. 462; Woodruff v. State, 61 Ark. 157, 32 S.W. 102; Acklen v. Hickman, 63 Ala. 494, 35 Am. Rep. 54.

Pierce, Tenneson, & Cupler, Robert M. Pollock, and S. G. More, for respondents.

Courts are liberal in allowing amendments. Martin v. Luger Furniture Co. 8 N.D. 220, 77 N.W. 1003; Stringer v. Davis, 30 Cal. 318; Smith v. Yreka Water Co. 14 Cal. 202; Kerr v. Grand Forks, 15 N.D. 294, 107 N.W. 197; Hayden v. Hayden, 46 Cal. 332; Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570; Rae v. Chicago, M. & St. P. R. Co. 14 N.D. 507, 105 N.W. 721; 1 Enc. Pl. & Pr. pp. 485, 500; Anderson v. First Nat. Bank, 5 N.D. 80, 64 N.W. 114; 1 Am. & Eng. Enc. Law, p 757; Wyatt v. Sweet, 48 Mich. 539, 12 N.W. 692, 13 N.W. 525.

FISK, J. GOSS, J., did not sit on the hearing of this case, W. C. CRAWFORD, Judge of the Tenth Judicial District, sitting in his place by request.

OPINION [130 N.W. 1011]

[21 N.D. 360] FISK, J.

This litigation arose in the district court of Cass county, and the action is one to foreclose two certain mortgages, one a chattel mortgage dated July 26, 1905, given by defendant Mary U. Pehrsson, to secure the payment to plaintiff of the sum of $ 6,077.28 and interest, and the other a real estate mortgage dated January 27, 1905, given by defendants Mary U., Lottie, and Gustave Victor Pehrsson, to secure the payment to plaintiff of the sum of $ 5,077.28 and interest; the latter sum being a portion of the indebtedness secured by such chattel mortgage, and all of such indebtedness being represented by numerous promissory notes, some of which were executed by Mary U. Pehrsson alone, and others by her and the other two defendants above named. The complaint is in the usual form. All of the defendants, with the exception of Lottie, answered together, expressly admitting the execution and delivery of the notes and mortgages described in the complaint. Such answer then alleges, by way of defense, substantially the following facts:

That defendant Mary U. Pehrsson is the widow of one Gustaveus A. Pehrsson, who died in 1895, and the defendants Lottie, Gustave Victor, Peter Adolphus, and Frederick Daniel are the children of Mary U. and Gustaveus, aforesaid. That the said Gustaveus A. Pehrsson died testate, designating as executrix of his last will and testament the said Mary U. Pehrsson. That about the year 1901, the plaintiff was duly appointed guardian of said children, who were at that time minors, and that he is still guardian of the defendant Frederick, the other children having arrived at majority; that among the [21 N.D. 361] property devised by the will of Gustaveus to the said children is a farm consisting of about 800 acres, in Cass county.

The answer further alleges that defendant Mary U. Pehrsson is of Swedish nationality, and unskilled and inexperienced in the practical affairs of farming and the transaction of general business, and that from the date plaintiff was thus appointed guardian of the children, and for four or five years thereafter, he assumed to act for the said Mary U. Pehrsson in the numerous and various transactions of operating said farm, and in probating the estate of the said Gustaveus, deceased, and that during all such time he acted as an adviser and friend for the said Mary U. Pehrsson and her children, and that, relying upon his honesty and integrity, Mary reposed unlimited confidence in the said plaintiff, and permitted him to advise with her in all business transactions, and that he was permitted, to a large extent, to handle her financial matters; that, from time to time during said period, plaintiff advanced moneys to the defendant Mary Pehrsson, to assist her in such farming operations, and, to secure the payment of such advances, he, from time to time, took notes and mortgages from her and some of the children, such mortgages covering both chattels and real property belonging to the defendants; and during such period plaintiff was permitted to market the crops grown by defendants, receiving the proceeds thereof, and also the proceeds of sales of stock and other property on said farm belonging to defendants. That plaintiff during said time owned and farmed land in the vicinity of defendants' farm, and frequently used the stock, implements, machinery, and employees of defendants on his said farm, and that he commingled and intermingled to a great extent the crops raised upon the farm of defendants with his own, as well as the proceeds of such crops.

That the several notes and mortgages executed and delivered from time to time by defendants, or some of them, to plaintiff, were thus executed and delivered without any actual settlement or statement of account between the parties, and without any fixed or just consideration, but simply for the general convenience of the parties, and in anticipation of advances to be made by him to the defendants; and they allege that no final and complete accounting or settlement has ever been made between them.

It is then alleged that defendants were unable to keep an accurate account of the numerous transactions between them and the plaintiff, [21 N.D. 362] and that defendants intrusted and relied upon the plaintiff to keep such an account, and defendants alleged that they do not know, nor have they any means of ascertaining, the actual or approximate indebtedness which may exist against them in plaintiff's favor.

It is further alleged that during said time defendant Mary U. Pehrsson conveyed to plaintiff certain property owned by her personally, to be sold by him and accounted [130 N.W. 1012] for to said defendant; that thereafter he did, in fact, sell said property, but has failed, refused, and neglected to account therefor in any manner.

It is further alleged that in the year 1905 plaintiff assisted the defendant Mary U. Pehrsson, as executrix, in procuring a loan in the sum of $ 4,000 upon certain of the premises belonging to said estate, and that a large portion of such loan was paid over to the plaintiff, and that he has failed and refused to properly account for the same.

It is further alleged that the defendants Gustave Victor and Lottie E. Pehrsson were never in any manner indebted to the plaintiff in any sum whatever, and that they signed the notes described in the complaint solely...