157 N.W. 696 | N.D. | 1916
Plaintiff is a real estate dealer and loan broker with offices in several towns. He was also the owner of several farms. One F. A. Tollefson was associated with plaintiff at Minnewaukan, North Dakota. During the summer of 1914 one of Eising’s farms was leased by one Heitkemper, who, during said season, grew thereon something over 1,000 bushels of wheat, around 900 bushels of oats, and something over 500 bushels of barley. The threshing was done by the defendant Tollerud. The agreed price was 10 cents for wheat, 7 cents for oats, and 8 cents for barley. The dispute in this case relates entirely to the number of bushels of each kind of grain that was actually threshed. Defendant, who was the separator man upon his own machine, testifies that the tally was correct and showed 1,409 bushels of wheat, 1,182 bushels of oats, and 782 bushels of barley. Part of
(1) There was no competent evidence introduced by plaintiff showing the actual number of bushels of any kind of grain threshed. While the tally is not conclusive, yet the fact that plaintiff was represented at the threshing machine and the evidence showing that the tallying- apparatus was frequently examined is strong- evidence that it was correct. There is also evidence given by one of plaintiff’s witnesses that he (the witness) had checked one load as it was weighed in at the threshing- machine and weighed out at the elevator' and he was asked:
Q. How did it hold out ?
A. I do not just remember. There was but very little difference.
Q. Just a few pounds ?
A. I think so.
This conversation was not denied by plaintiff’s witnesses, although they did claim that the amount actually hauled to Van Leit’s was about 9 bushels. The same reasoning applies to the weight of the oats. The only evidence as to the amount actually threshed, besides the evidence of the thresher who relies upon the tally, is the evidence of the tenant and his hired help that after the threshers had fed their teams from the oats for four days the balance was put into a granary and there measured. The amount in the granary, with an estimate of the amount of grain fed, was the only evidence offered on behalf of the plaintiff. Regarding the barley, — that was placed in bins and there measured by the tenant. Upon this state of the evidence which, of course, we cannot reproduce more fully here, it could not be said that the findings of the trial court are against a fair preponderance thereof.
(2) Another reason why defendant should prevail is that the payment made was voluntary, with the full knowledge of all of the facts.
As we have already stated, plaintiff was not a witness, but his business associate, Tollefson, testified as follows:
Q. And you found the wheat short according to his figures ?
A. Yes, sir.
Q. And you found the oats short, according to his figures ?
A. Yes, sir.
A. Yes, sir.
Q. And it was quite a long time after that that you drew the check and Mr. Rising signed the check, which is now exhibit “1” and gave it to Tollerud in payment of the threshing bill ?
A. That was a few days after Mr. Rising had gotten back from the West.
Q. At that time both you and Mr. Rising knew about this supposed shortage ?
A. Yes, sir. . . . We paid it directly upon what he asked, because Mr. Rising figured he would have to pay him the full amount in order to get damages if he was going to get any damages.
In other words, Rising made this payment with full knowledge of every fact that he now claims to know, excepting possibly the amount of the grain appropriated by the tenant. That it was the duty of plaintiff to make a full investigation of this latter is shown by the text at 2 R. C. L. page 785, which reads: “Moreover, in the settlement of disputed questions where both parties have equal opportunities and facilities for ascertaining the facts, it becomes incumbent on each then to make his investigation, and not carelessly settle, trusting to future investigation to show a mistake of fact and enable him to recover back the amount paid. One course encourages carelessness and breeds litigation, after witnesses have passed beyond the reach of the parties; the other encourages parties in ascertaining what the facts and circumstances actually are while the transaction is fresh in the minds of all and a final and peaceful settlement thereof.” Walser v. Board of Education, 160 Ill. 272, 31 L.R.A. 329, 43 N. E. 346; McArthur v. Luce, 38 Am. Rep. 204, and note, 43 Mich. 435, 5 N. W. 451; Behring v. Somerville, 63 N. J. L. 568, 49 L.R.A. 578, 44 Atl. 641; Wessel v. D. S. B. Johnston Land & Mortg. Co. 3 N. D. 160, 44 Am. St. Rep. 529, 54 N. W. 922.
The other questions argued in appellant’s brief are answered in those two propositions and are without merit. Judgment of the trial court is affirmed.