84 N.W. 568 | N.D. | 1900
Action on a promissory note. The trial was to the court without a jury, and resulted in a judgment in favor of defendants dismissing the action on the merits. The note in suit was given to cover an alleged shortage in the accounts of the defendant Schmidt while acting as plaintiff’s agent. Deschenes signed as surety. Both defendants interposed want of consideration for the note as a defense. The case is here for 'trial de novo, but only as to a portion of the facts. It appears that the plaintiff is a co-partnership, and at the times herein named operated a number of grain elevators. One of these was located at the town of Cashel, in this state. Defendant Schmidt was in the employ of plaintiff from August 23, 1895, until December 25, 1897, and was in charge of the elevator at Cashel. Plaintiff also had another elevator at 'the city
It is appellant’s contention that in any event defendant is estopped from claiming that he did not get the $500. This rests entirely upon the theory that the evidence shows that defendant has acquiesced in the error, and thereby prevented plaintiff from ascertaining who got it, and so prevented a recovery of the same when a recovery was possible. This contention is disposed of by the conclusion already announced. Defendant called attention to the error of which he now complains, and repeatedly requested that it be investigated and corrected. If plaintiff suffers prejudice, it is to be directly attributed to its failure to investigate as promised.