95 N.W. 436 | N.D. | 1903
In the year 1900, and prior to that year, one William Clemens was the local agent of the Great Western Elevator Company at Leonard, N. D. Said Clemens and other employes of said elevator company were required to furnish bonds to it for the faithful discharge of their duties. The plaintiff gave the eievatoir
The record shows, in addition to the facts already narrated as to Mitchell’s agency in procuring the counter bond, that Mitchell did not know or see or in any way communicate with the defendants before they signed the bond, or thereafter, until November or December following. He did not know until the bond was sent to him who the sureties were to be. He and Clemens had no conversation as to who the sureties were to be. During the conversation at Fargo, Clemens told Mitchell nothing about his relations with the elevator:
The court, in its charge, gave to the jury the following instruction, which was duly excepted to: “You are further instructed that, for the purpose of obtaining the bond in suit, the plaintiff indemnity company constituted and appointed Mr. Mitchell, as manager of the Great Western Elevator Company, plaintiff’s agent, and that, during the time Mr. Mitchell was acting for and in conjunction with the manager of the plaintiff indemnity company in obtaining the bond in suit, any knowledge possessed by Mr. Mitchell as to the character or habits or previous defalcations of William Clemens was imputable to the plaintiff indemnity company; and if Mr. Mitchell, while acting as agent for the plaintiff for the purpose of obtaining the bond in suit, knew that William Clemens had previously been guilty of criminal defalcations while acting as the local agent at Leonard for the Great Western Elevator Company, or if Mr. Mitchell, while acting for the plaintiff indemnity company, as aforesaid, knew that William Clemens had previously been guilty of acts involving moral turpitude while acting as the local agent for the Great Western Elevator Company at Leonard as aforesaid, or if Mr. Mitchell, while acting for the plaintiff indemnity company in obtaining the b<?nd in suit as aforesaid, knew that William Clemens had previously embezzled the money or property of his employer, the Great Western Elevator Company, then I instruct you that sucH
In this instruction the trial court told the jury that Mitchell was the agent of the Aetna Indemnity Company, and that his knowledge of Clemens’ embezzlement or criminal misconduct as agent was imputable to, and became the knowledge of, the plaintiff. This was said without qualification, and, under the cases cited, was prejudicial error. In this instruction the jury was told that, if Mitchell had knowledge that Clemens was guilty of criminal conduct while acting as agent for the elevator company, then plaintiff was bound to disclose such knowledge to the defendant bondsmen, and, failing to do so, the defendants would not be liable on the bond given. The court also instructed the jury that if Clemens violated any law of the state in connection with his business as agent of the elevator company at Leonard, and the elevator company knew such fact, before the counter bond was given, and the defendants did not know it, Mitchell should have advised the defendants, and, failing to do so, defendants would not be liable. The evidence on this point showed that, three years prior to giving the counter bond, Clemens had kept beer in the elevator, and given it to customers to induce further trade. The evidence does not show that Mitchell had notice of it at the time or later, or that any of the agents of the elevator company knew of such conduct on the part of Clemens at the time of the giving of the bond. Conceding that Mitchell knew that Clemens had kept beer at the elevator contrary to law, even, and conceding further that the plaintiff company had notice of that fact, it does not follow that the plaintiff company must disclose this fact to the defendants, and, if it failed to do so, that they would be released from responsibility on the bond. It must be remembered that the plaintiff company was not
For the reasons given, the giving of these instructions was erroneous, and would have been erroneous even if Mitchell had been the agent of the plaintiff.
Plaintiff moved for a directed verdict in his favor at the close o£ the testimony, and, after verdict, asked for judgment notwithstanding the verdict or for a new trial. It is now urged that judgment notwithstanding the verdict should be directed by this court, under; the provisions of chapter 63, p. 74, Laws 1901. That law was originally enacted in Minnesota in 1895, and the construction placed upon it by the Supreme Court of Minnesota is deemed to have been adopted by its enactment in this state. The practice is well settled in that state that a motion for judgment notwithstanding the verdict will only be granted in those cases where it is clear, as a matter of law, upon consideration of all the evidence, that the cause of action or defense has not been shown in point of substance. If it appears probable from the evidence produced at the trial that proof can be supplied on another trial to cure the defect, such motion will be denied. Marquardt v. Hubner (Minn.), 80 N. W. Rep. 617; Cruikshank v. Insurance Co. (Minn.), 77 N. W. Rep. 958; Richmire v. Andrews & Gage Elev. Co., 11 N. D. 453, 92 N. W. Rep. 819. In other words, such motion for judgment will not be granted in case of conflict of evidence, although such conflict is such that the trial court will be justified, in its discretion, in granting a new trial notwithstanding it. The party making such a motion must base it upon a state of facts that will warrant the court in granting it, without trespassing upon the province of the jury to be the judges of all questions of fact in the case. Under this rule, it remains to be determined whether the trial court should have granted the motion, or whether this court should do so now, under the facts shown by the record. The evidence shows that the agent, Clemens, was short in his accounts in April to the extent of about $400. Whether such shortage was a dishonest one or not is a disputed question, and a finding by the jury either way would probably not be disturbed. This shortage was settled by Clemens soon thereafter. Whether it was settled before or after giving the counter bond is not clearly shown. The counter bond was given on June 11th, and the shortage was settled, as testified to, in May or June. Another matter of evidence pertaining to Clemens’ and the defendants’ liability under the
The judgment is reversed, a new trial granted, and the cause remanded for further proceedings according to law.