175 N.W. 222 | N.D. | 1919
This is an appeal from an order made by Judge C. W. Buttz, of the district court of Ramsey county, sustaining a demurrer interposed by the defendant to plaintiff’s complaint in said action. The complaint, in substance, shows that the plaintiff is a Minnesota corporation authorized to do business in the state of North Dakota, engaged in the retail lumber and fuel business; that between the 1st day of October, 1909, and the 1st day of April, 1910, the defendant was in the employ of the plaintiff as agent and manager of plaintiff’s lumber and fuel business at the village of Mylo, and had charge of the sales, collections, and books of the plaintiff; that it was his duty to conduct said business and to keep an accurate account of the same and report to plaintiff, and turn over to it the proceeds of sales and collections; that dur
The action against Martin came on for trial at Eolia on the second day of Octobex*, 1914; that at said trial, Martin was called for examination under the statute, and testified that he had made payments for the benefit of the plaintiff of which the plaintiff had no knowledge, and with which Martin was not accredited upon the books of the plaintiff by the defendant Conners; that at said trial plaintiff for the first time received any notice or knowledge that the defendant Martin claimed to have made payments to the plaintiff, and thereupon asked leave to amend its complaint, and was given thirty days in which to do so. The parties stipulated the transfer of the action to the county of Eamsey for trial, and the same was thereafter tried anew at the November, 1917, regular term of court at the city'of Devils Lake.
Prior to said term of court at Devils Lake, the plaintiff served upon defendant Conners a notice to appear, intervene, and defend as to items of payment claimed by Martin to have been made to defendant Conners, and which he had not reported or accounted for to the plaintiff, said notice being exhibit “A,” and it is made a part of the complaint. The notice was served upon Conners upon the 6th day of December, 1917, at the county McLean. The plaintiff and defendant Martin appeared at the trial; W. G. Conners did not appear, nor make any application to appeár or defend as to the claims of Martin regarding the sums paid by him.
At the trial, Martin testified he had paid to Conners the following sums of money: December 22, 1909, $100; December 24, 1909, $200;
To the complaint, the defendant demurred. The demurrer was sustained. The plaintiff maintained that the court erred in sustaining the demurrer. We are of the opinion that the court did not err in sustaining the demurrer. The complaint most certainly does not allege a cause of action against the defendant. Admitting all the allegations of the complaint to be true, it does not set forth a cause of action against the defendant. The action brought by the plaintiff against Martin was one to recover the amount claimed to be due upon a certain promissory note. Conners was not made a party to that action as he could not well have been, for it is not maintained that he was a signer of the note, nor a surety nor a guarantor thereof. To have made Conners a party to the -action between plaintiff and Martin, it would have been necessary to have proceeded in the ordinary manner of commencing an action, viz.,
In the trial of the action between plaintiff and Martin, the court had no jurisdiction over Conners, and the judgment entered in that action had no legal force or effect as to him, and did not operate to make the judgment in the action against Martin effective against him. It was a' mere waste of time and effort to serve the notice. The legal effect of the notice in that action was nothing. The plaintiff had a perfect remedy against Conners if he had cared to exercise it, which was an action in accounting. This plain and simple remedy was at the disposal of the plaintiff at all times. If he had at any time sued Conners, he could have compelled him to account for any and all moneys collected and received by him while acting as its agent. If it had done this, the defendant would also have been afforded his day in court, and could have set forth his defenses if any he had. The plaintiff, however, maintains that the complaint alleges a cause of action for indemnity, and seeks to recover upon that theory. As we view the matter, there is no merit in plaintiff’s contention in this regard. The allegations of the complaint do not in the remotest degree set forth or even shadow forth any cause of action against the defendant, either on the theory or principle of indemnity or otherwise.
Section 6641, Comp. Laws 1913, defines indemnity as follows: “Indemnity is a contract by which one engages to save another from legal consequence of the conduct of one of the parties or of some other person.” There is no such contract in this case; there are no relations between the parties which rest upon the principle of indemnity. The relation between the plaintiff and his defendant was that of principal and agent. If Conners in the performance of his duties as agent received and collected money which it was his duty to turn over to the plaintiff, and he did not do so, the plaintiff, if he had proceeded in time, and had not slept upon his rights, could have, as above stated, brought an action for accounting. If plaintiff, however, has seen fit not to avail himself of the plain remedy which the law afforded it, and has slept upon its rights, it must suffer the consequences of its own neglect.
The plaintiff’s argument is very ingenious. It seeks to show the applicability of the principle of indemnity by endeavoring to show that
The case of Grand Forks v. Paulsness, 19 N. D. 293, 40 L.R.A. (N.S.) 1158, 123 N. W. 878, has been cited by plaintiff and appellant in support of their contentions. It, in no sense, supports appellant’s position. That case, in no manner, sustains the position of the plaintiff. It is wholly unnecessary to enter into a discussion of the facts and law involved in that case. The complaint and the facts stated herein do not constitute a cause of action against defendant, and the trial court very properly sustained the demurrer to the complaint.
The order of the trial court appealed from is affirmed. The respondent is entitled to the statutory costs of'appeal.