42 Minn. 123 | Minn. | 1889
The plaintiff, on November 23, 1884, deposited in the First National Bank of Faribault $6,666.67, to be paid to the ■defendant if he should, on or before March 15, 1885, deposit with said bank for plaintiff a good and sufficient warranty deed, conveying to plaintiff, free and clear of all incumbrance, two certain pieces of real estate, and also all tax certificates concerning the same, and also a duly-certified copy of a resolution of the board of directors of the Wisconsin, Minnesota & Pacific Bailroad Company, releasing plaintiff from all and singular the covenants and obligations of each and every agreement between plaintiff and said company concerning the application of the proceeds of a certain land grant to plaintiff. The bank gave plaintiff a receipt for the money, showing the purpose and terms for and upon which it was deposited. March 7, 1885, defendant applied to the bank for payment of the money to him, offering to deposit with it a warranty deed conveying to plaintiff one of the pieces of real estate, he then having good title to the same; a warranty deed which he at the time supposed conveyed to plaintiff the other piece of real estate, but which did not describe it properly,
We have stated the facts more in detail, perhaps, than was actually necessary for the decision of-the case. The principles of law
We have said there was no contract, — nothing but an offer, — because, although in a conversation between defendant and some of plaintiff’s directors they informed him that plaintiff would give him $6,666.67 for the lands and release, and he said hewould accept and procure the release and make the conveyance, there was no corporate action, (and that alone is to be looked to, and not conversations with or offers by its individual- directors,) except a resolution of the
The defendant has pleaded, and insists upon, as a bar to the action, the judgment in the action against the bank. That judgment is not a bar, for two reasons: First. The parties are not the same; for, if it be conceded that one not a party to an action may be es-topped, or claim an estoppel, by the judgment, because he is the real party in interest and conducts the defence, yet he must do so openly and to the knowledge of the other party, and for the defence of his own interests. Schroeder v. Lahrman, 26 Minn. 87, (1 N. W. Rep. 801.) Whatever part defendant took in that ease, it was not with the knowledge of the plaintiff. Second. The issues are not the same. In this action the contest is only upon defendant’s right to receive .and retain the money. In the action against the bank there was the additional issue, was the bank guilty of negligence, as plaintiff’s bailee, in paying the money to defendant ? and it was upon that issue that the judgment in favor of the bank was affirmed in this -court. The tender of the instruments on December 23d to the plaintiff’s attorney in the action against the bank, even if the defendant had a right then to make the tender, was ineffectual, for the attorney does not appear to have had any authority to receive them. But, as we have seen, defendant had no right to tender performance on his part — that is, to accept plaintiff’s offer — after March 15th; and, had the tender been made to any officer authorized to act for plaintiff in the premises, it would have been of no effect unless accepted.
And this brings us to defendant’s claim that plaintiff received the whole consideration for the money. The facts found negative this claim. The offer of the various instruments to the bank, and an acceptance by it^would bind the plaintiff only in case they were in -accordance with the terms of the deposit of the money. None would go into effect by reason of that tender, unless all were correct. Plaintiff was not obliged to receive a part-acceptance of its offer, or the
It is also claimed that plaintiff has accepted a part of the benefits of what was done by defendant, and thereby ratified all that was done. It is true that if it had received and retained a part of what he tendered to the bank — as if it had accepted the deed that was good, or the lease — it could not afterwards repudiate what it had accepted, and recover the money from defendant, provided he was ready and willing, even after the 15th of March, to make good the remainder. It is claimed that plaintiff has accepted the benefits of the release. The railroad company’s resolution of release offered to the bank was not such as plaintiff’s offer contemplated; but it was, as the court below finds, passed for the purpose of releasing plaintiff from the obligations of all covenants and agreements between plaintiff and the railroad company concerning the application of the proceeds of a certain land grant to plaintiff, and the court finds that the resolution “has always been acquiesced in by the railroad company.” How it has been acquiesced in, whether by any act between it and plaintiff, or merely by omission as yet to attempt enforcement of such covenants and agreements, does not appear. Whatever the railroad company might do or omit to do, unless with the concurrence of plaintiff, could not affect the rights of the latter. The court also finds that since February 7, 1885, the date of the resolution, — a month prior to the day when defendant received the money from the bank, — the plaintiff has done no work, and made no expenditures as provided for in the agreements between it and the railroad company, but h as-expended the proceeds of the land grant, except the money involved in this action and a few hundred dollars, otherwise than as in such
Judgment reversed and a new trial ordered.
Collins, J., was absent and took no part in this case.