166 N.W. 525 | S.D. | 1918
Action far certain -moneys which it is claimed that one No-rby wrongfully paid -'to defendant corporation -cut of the moneys of the Independent Elevator Company, hereinafter spoken of' -as plaintiff. Judgment for plaintiff. From such judgment- and an order -denying a mew trial thi-s- appe-al was taken.
Respondent objects to a consideration -of the statement contained in appellant’s brief -and to a consideration of a -part of the printed -record herein designated “Appendix.” Such objections are without- merit in the light of the settled record herein.
Respondent -objects to our considering the question of the sufficiency of the evidence to support toe findings, urging five reasons why we should not consider same. An' examination of the whole record herein reveals that non-e -of said objections -are well taken; and none -of them raise any question of practice of sufficient moment to warrant further -consideration.
“Had’ * * * [the two- directors- 'of plaintiff- other than the secretary and manager] given clue attention to their -duties-as .directors, they would have known these payments were -being made, -and it was due to the manner in which fh-ey conducted the business- that they did- not know.”
There was absolutely no evidence to sustain -the finding that defendant, when it received the money, knew -th-ait the party paying same bad! no authority 'to pay it over for the purposes for which it was paid.
We are of the -opinion' that, under the undisputed evidence herein, there is no room for -reasonable men. to reach different conclusions -as to the material facts; and that, under such facts, the transactions in question were those of plaintiff. This being true we must, as a matter of law, reverse the -trial court. Drew v. Lawrence, 37 S. D. 620, 159 N. W. 274. In any case it would be unconscionable to allow plaintiff to recover herein, because, while this suit is- brought ostensibly on behalf of plaintiff company, in reality, as is clearly disclosed by the evidence, the only persons Who- would in fact benefit thereby are the two directors other than Nobby and those claiming under No-rby.
The judgment and- order appealed- from are reversed.