Hyde v. Thompson

Fisk, J. The sole question on this appeal is the correctness of the ruling below in directing a verdict in defendant’s favor. Plaintiff seeks to recover for money had and received by defendants to his use. Briefly stated, the facts are that plaintiff had a seed lien upon certain wheat, which defendants had taken into their possession under a chattel mortgage for the purpose of foreclosure, .and in addition to the facts necessary to show the validity of plainrtiff’s lien the complaint alleges an express contract between .plaintiff .-and defendants whereby the latter agreed in consideration of being •permitted to foreclose their said mortgage, which covered said wheat and other personal property, to pay to plaintiff the proceeds from (the sale of such wheat and that thereafter they foreclosed accord [3] ingly, and received on the sale of the wheat the sum of $165.64 and refused to turn the same over to plaintiff as promised, although payment thereof had been demanded by him. At the trial plaintiff introducetT testimony tending to substantiate the allegations of his complaint in all particulars, and rested his cáse, whereupon the trial court, on motion of defendant’s counsel, directed a verdict in defendant’s favor, as above stated. (120 N. W. 1095.) We are entirely clear that such ruling was erroneous. The reasons urged by respondents’ -counsel in support of such -ruling merit but brief notice. These reasons, as stated in his brief, are the following: “(1) That, where adverse claimants are asserting rights to property covered -by their adverse liens, the law will -not im-p-ly a promise to pay. (2) In the -cas-e at bar there is no express -promise -and no agreement to pay, either by the defendants or any one authorized to enter into any agreement -on their behalf. (3) That plaintiff has failed to prove that he had -a seed lien upon the grain taken by defendants under their chattel mortgage.” The first proposition advanced is not necessarily involved in the case. Plaintiff does not rely for a recovery solely upon an implied promise on-defendant’s part t-o pay to plain-tiff the proceeds of such wheat. He relies upon their express promise to do so. But, were it otherwise, we think that under the undisputed evidence, showing the priority of plaintiff’s lien, the law -would raise an implied promise on defendants’ part to pay to plaintiff the -proceeds of such wheat. Brand & Co. v. Williams, 29 Minn. 238, 13 N. W 42; Siems v. Bank, 7 S. D. 338, 64 N. W. 167; Finch et al v. Park, 12 S. D. 63, 80 N. W. 155, 76 Am. St. Rep. 588. This being true, it necessarily disposes of respondents’ second contention also. Their second contention is wholly untenable for another reason. The plaintiff’s testimony is clear and specific to the -effect t-hat an express promise was made as alleged. The proof shows that Coffey, the person who made such agreement -on defendants’ -behalf, was not only expressly authorized to -do so, but his acts were subsequently ratified by defendants. Such contention, therefore, flies in the teeth of the facts as testified to by plaintiff, and which must be accepted as true on this -appeal. This is equally true as to respondents’ third contention, which merits no further consideration. Judgment reversed, and new trial ordered. All concur except Morgan, C. J., who did not participate on account of illness.