Calkins v. Stevens

193 N.W. 733, 49 N.D. 768, 1923 N.D. LEXIS 29

• Court: North Dakota Supreme Court
• Decided: May 5, 1923
• Status: Published

Opinion

Bronson, Ch. J.

In a police court, plaintiff sued defendant to recover $200 due for rent. Garnishment proceedings were also instituted. The garnishees, who had purchased a certain pool hall outfit from defendant, disclosed $200 due. The appellant herein, claiming a right to the money through a chattel mortgage upon the outfit, was permitted to intervene. After trial, the police magistrate found that the intervenor had consented to the sale of the mortgaged property and entered judgment in plaintiff’s favor against the defendant and also the garnishees for $200. An appeal wras taken to the district court. There a trial was had to the court without a jury. In the evidence it appears that defendant sold to the garnishees the pool hall outfit for $200 and gave to them a bill of sale therefor. The appellant, who had a chattel mortgage upon this outfit, testified that he had authorized defendant to sell this property provided defendant turned over the money to him to apply on defendant’s indebtedness to appellant; that he did not know anything about the bill of sale. The district judge, in an order for judgment, found that appellant had consented to a sale of the outfit by defendant and, by so doing, waived his lien. The appeal, accordingly, was dismissed. Appellant made a motion for a new trial. This was denied. He has appealed from the judgment. He contends that the trial court erred in not making full and formal findings of fact and in holding that the lien was ivaived. The trial court did make a finding of fact that appellant consented to a sale of the property by defendant, and, a conclusion of law, that appellant waived his lien. The evidence is here. The finding is supported by the evidence. It determines all issues presented by the record. The judgment accordingly will not be reversed for failure to make findings upon other issues. Chaffee-Miller Land Co. v. Barber, 12 N. D. 478, 483, 97 N. W. 850. The conclusion of the trial court was proper. The authorization given by appellant to defendant to sell the property, to receive the proceeds, and, thereafter, to pay the same to appellant, operated, upon this record, to substitute the promise of the defendant to pay for the lien right of appellant to enforce payment. New England Mortg. Secur. Co. v. Great Western Elevator Co. 6 N. D. 407, 71 N. W. 130; Shortridge v. Sturdivant, 32 N. D. 154, 159, 155 N. W. 20. Thus, the lien was waived.

The judgment is affirmed with costs.

Christianson, Johnson, and Birdzell, JJ., and Burr, Dist. J., concur. Mr. Justice Nuessue, being disqualified, did not participate, Honorable A. G. Buer, Judge of Second Judicial District, sitting in his stead.