Davis v. Severance

49 Minn. 528 | Minn. | 1892

Vanderburgh, J.

The defendant Chipman, who was employed by plaintiff to collect certain promissory notes due her from the defendants Severance, received part payment thereof in money, and took a mortgage, with new notes for the balance, to himself, without the knowledge or authority of the plaintiff. These new notes and mortgage were turned over by Chipman to the defendant Edwards. Chipman afterwards absconded, and plaintiff brings this action, and sets out the transaction in full in her complaint, protesting that she has not ratified the acts of Chipman in the premises, and asking generally such relief as will be in accordance with equity, and as she may show herself entitled to; and adding also a prayer for an injunction restraining the defendant Edwards from disposing of the note and mortgage running to Chipman, and assigned to him as above stated. The answer of the defendant Edwards shows that the last-named notes and mortgage were assigned to him as collateral security for a loan made by him to Chipman in good faith to secure the sum of $400. The foregoing facts also appear from the findings of the court, ’which also finds that the plaintiff has at no time ratified the acts of Chipman in taking the new notes in payment of the old notes left with him for collection. As there is no case or bill of exceptions, the proceedings upon the trial do not appear.

It wras a proper ease for an election by the plaintiff to proceed against the defendants Severance for a recovery of the old notes, or against Edwards for a determination of the relative rights of the parties to the new notes.

The complaint was drawn with a double aspect, and might have been corrected upon motion. The counsel for Severance,_ however, claims that by joining Edw'ards, and asking for an'injunction, the plaintiff had ratified the acts of Chipman in taking the new notes.

The parties were not, however, necessarily concluded by the pleading. They might nevertheless consent to proceed to trial upon the cause of action against Severance, and abandon the claim against Edwards; and, in the absence of any record of the proceedings on the trial, we must presume, in support of the decision, that they did consent to do so, and that the record, if complete, would justify the action of the court and its findings. The act of the plaintiff in joining Edwards and asking for an injunction, while repudiating the acts of Chipman, though apparently inconsistent with his claim against defendants Severance, was evidently precautionary, and conditional upon the final determination as to the facts. Still it might be waived on the trial, and the plaintiff be required to elect, as was assumed on the argument he did do.

The only question remaining for us to consider is whether the de-cisión of the court is warranted by the findings. It is found that the defendants Severance, at the time they gave the new notes, paid over to Chipman on the original notes the sum of $294.67 in cash. This, the court held, was a part of the settlement made with Chip-man when he took the unauthorized notes -for the balance, and, being all in one transaction, the defendants were not entitled to credit for the amount paid in cash. To this we cannot agree. The transaction is not found to be fraudulent. Chipman was authorized to receive payment in money, and the payment to him was good pro tanto. The amount paid must therefore be allowed and credited upon the original notes, the recovery of which was awarded to plaintiff, and the judgment must be modified to that extent.

(Opinion published 52 N. W. Rep. 140.)