114 N.W. 313 | N.D. | 1907
Plaintiff recovered judgment in the district court of Foster county, and defendant has brought the case here for trial de novo of the entire case.
Plaintiff’s cause of action arises out of a contract entered into between the parties on August 17, 1903, by the terms of which the plaintiff agreed to sell to the defendant, and the latter agreed to purchase from plaintiff, a threshing rig consisting of an engine separator, self-feeder and other attachments, at the agreed price 'of $3,100, and freight charges on the same from Columbus, Ind., to Carrington, in this state. Plaintiff contends that defendant refused to receive and settle for said rig pursuant to the contract.
The object of such rule is apparent. It was to prevent the pledgee from obtaining an unconscionable advantage over the pledgor. A purchase by the pledgee is not void, but merely voidable at the election of the pledgor. It has accordingly been held that the latter may ratify such sale either expressly or impliedly by long acquiescence. 22 Am. & Eng. Enc. Law, 892, and cases cited; Winchester v. Joselyn, 31 Colo. 220, 72 Pac. 1079, 102 Am.
It is therefore our duty, if possible, to harmonize said sections, to the end that the intent so apparent may be given effect. We accordingly hold that the sections of the Code heretofore referred to, and which relate to the foreclosure of a pledge, are and were on August 6, 1904, in full force and effect, and that such sale was therefore invalid as to the defendant, he not having ratified the same. Respondent’s counsel do not contend that they bave any right to recover in this action, except upon the theory that such foreclosure was valid.
It follows, therefore, from what we have above said that the judgment appealed from must be reversed, and the action dismissed, and it is so ordered.