69 N.W. 53 | N.D. | 1896
This action was brought to recover the possession of certain personal property, to-wit, two mares, one colt, and a couple of oxen. Plaintiff’s claim the right of possession under a chattel mortgage covering the property, which was executed and delivered by the defendant to secure a promissory note for $115. By his answer defendant admits the execution and delivery of the note and mortgage. Further answering, the defendant alleges that the note was given for the purchase price of one of the mares; that said mare was sold with a warranty to the defendant as to her age, soundness, trueness in harness, etc; that said warranty was false, and broken, and that the defendant was damaged thereby; and that the mare was not worth the said purchase price of $115, and was not worth to exceed $25. Upon these issues a jury trial was had. We quote from the abstract: "Both parties having rested, the plaintiff moved the court to instruct the jury to find a verdict for the plaintiffs and against the defendant, that plaintiffs are entitled to the immediate possession of the property described in the complaint, and tlja^
No further proceedings were taken in said action by either of said parties until the first day of April, 1896, when the attorneys for the- plaintiffs served upon the attorneys for defendant a notice of motion for an order directing the entry of judgment, in favor of plaintiffs and against said defendant, upon the verdict rendered in said action, for the recovery of the property described in plaintiffs’ complaint or the amount due plaintiffs on the note described therein, in case delivery of the property cannot be had. Thereafter, and before said motion was argued before the court, the attorneys for defendant served notice upon plaintiffs’ attorneys for a new trial in said action, returnable on the 21st day of April, 1896. At said last mentioned time both of the aforesaid motions were argued, and after hearing the arguments on said motions, the'court' made its order as follows: “The above entitled cause having been brought on to be heard on the 22d day of April, 1896, on motion made by plaintiffs for judgment on the verdict, and on motion made by the defendant to vacate and set aside said verdict, and to grant the defendant a new trial in said cause, Messrs. McCumber &' Bogart appearing for the plaintiffs and W. E. Purcell, Esq., appearing for the defendant, and the court having heard the arguments for the respective parties on said motions, and being duly advised in the premises, it is hereby ordered that the motion made by the plaintiffs for judgment on the verdict rendered at the January, 1895, term of this court, in said cause, be, and it is hereby, in
In this court plaintiff’s counsel makes the preliminary point that the trial court erred in granting the new trial for two reasons: First, that a notice of intention to move for a new trial was never served; second, that the order directing a verdict for plaintiffs was not objected to, and no exception thereto was taken. We think both of these grounds are untenable. The record, as stipulated and completed shows that counsel for defendant did both object and except to the' ordér of the trial court directing a verdict. We quite agree with counsel for the plaintiffs that the stay order and the entry in the minutes are unavailing ás a notice of intention to move for a new trial. A notice of intention must be served on the respondent’s counsel and must, when the motion is made upon the minutes, as in the case, specify the particular errors or grounds upon which the motion will be made. These
Turning to the merits of the controversy, the question presented is whether the order of the tidal court directing a verdict for the plaintiffs was a proper order, under the issues and the evidence in the case. If properly made, the order vacating the verdict was necessaidly error, and thei-efore should be reversed; othei'wise it should be affirmed. It will be noticed that the final order directing the verdict in terms withdraws from the juiy all questions of damages aidsing upon the defendant’s answer, and also ignores the matter of plaintiffs’ special interest in the property, and the value of such special interest. The verdict conformed to the fjn^l direction of the court. Plaintiffs’ special
The evidence bearing upon the warranty alleged in the answer may be briefly stated as follows: At the time of the delivery of the note and mortgage, the vendors made a bill of sale of the mare, which was signed, on behalf of the vendors, by their agent, W. J. Smith, and also signed by the defendant. The bill of sale embraced the following stipulation: “And it is hereby distinctly understood and agreed that no representation or warranty respecting said mare is made as an inducement for or in connection with this sale.” At the time of the sale, and the delivery of the papers, the mare, sold was loose in a herd, but near by where the sale was made, and where she had been seen by the defendant before he purchased her; but he had not caught or handled her before the sale. After the sale, and delivery of the papers, the mare was caught, and the possession of her was tendered to the defendant. At this point we quote from defendant’s testimony: “Q. You first signed the note and mortgage and the bill of sale? A. Yes, sir. Q. You remember that, do you? A. Yes, sir, Q. That wag before the. horse was caught? A. Yes, sir,”
But, as we have seen, the sale having been completed, and the title having passed by the the delivery of the writings, no duty remained for the seller to perform, except to produce the property sold, and place it at the disposition of the buyer. This was promptly done. The animal was caught, and brought to the buyer, and he examined her, with reference to her age, especially, and then found, as he testifies, that she was older than she had been previously represented to be. According to defendant’s testimony, he refused to accept the mare, and did not do so until a new contract of sale was made “verbally.” But what the terms of the new contract were, except as to the oral warranties claimed, does not appear from the evidence. Plaintiff’s witnesses deny the making of any new contract, or any oral warranties; but, from the very meager testimony of the defendant, we gather that the new contract of sale, so called, consisted wholly in ingrafting upon the 'terms of the existing written contract of sale the oral warranties we have referred to above. But was this oral warranty, as testified to by the defendant, a valid contract? We think it
But there is another and independent ground upon which the evidence touching the oral warranty was inadmissable. It is this: The talk was had between the defendant and the vendox-s’ agent, Smith. In'the absence of -notice to the defendant of any restrictions upon the authority of the agent, the defendant had the xdght to assume that the agent, having authority to sell, also had an implied authority to wax-rant. But there the implied authority of a mere agent to sell terminates. In this case the agent had made an advantageous contx-act for his px-incipal.’ He had sold the mare with an express stipulation that no wan-anty was given in connection with the sale. Under this contx-act the title had passed to the defendant. How is it px-oposed to get xdd of this executed contract? The respondent'asks this court to assume that a mere agent to sell personalty possesses the implied authority, not only to wax-rant, but to rescind an executed sale, and thereby x-einvest his principal with title to the px'operty which had vested in the purchaser under a pre-existing contract of sale. It is well settled that a mere agent to sell possesses no such implied authority. The undisputed evidence shows that the
A single question remains for consideration. The trial court, by its last order, directed the jury to find a verdict for the plaintiffs for a return of the property, and also find the value of the property in question. The jury returned a verdict as directed, and omitted in the verdict any reference to the value of the plaintiffs’ interest. This omission is manifestly the result of the inadvertence of the jury. The nature of plaintiffs’ interest, and its value, were at no time disputed. The complaint set out the note and the chattel mortgage as the basis of plaintiffs’ right to the possession of the property described in the mortgage. No other right was claimed. The a'nswer admitted the execution and delivery of the note and mortgage, añd no claim was made that the note was paid, except a payment of $10, which was indorsed on the note, which was in evidence. Before the jury retired the first time for deliberation, they were instructed, especially, with reference to finding the value of the plaintiffs’ interest, and were.
Respondent’s counsel contend that no valid judgment can be entered upon the verdict returned, because the verdict does not respond to the issues in this: that the value of the plaintiffs’ interest was not found by the jury. It is true that all verdicts must respond to every material fact in issue. This general rule is the rule in replevin cases. Cobbey, Repl. § 1049. But, as we have seen, in the case at bar there was no issue on this feature. Under the pleadings, the nature and the value of plaintiffs’ interest were conceded, and subject to .be modified only by any damages
The orders appealed from will be reversed, and the trial court, on plaintiffs’ application therefor, will enter an order amending