Appeal from District Court, Benson Coun- | In November, 1916, the judgment of this ty; C. W. Buttz, Judge. Action by Northern Drug Company, a corporation, against J. N. Kunkel, as Sheriff of Wells County. Judgment for defendant, and plaintiff appeals. Affirmed. Henry G. Middaugh and Rollo F. Hunt, both of Devils Lake, for appellant. Flynn & Traynor, of Devils Lake, and B. F. Whipple, of Fessenden, for respondent. BRUCE, C. J. This is a proceeding to amerce a sheriff under the provisions of section 7770, Compiled Laws of 1913. The only remissness in duty in any way apparent or urged by counsel for appellant is that the defendant officer failed to return the execution "on or before the return day." The affidavits, however, show that the sheriff attempted by phone to demand, and actually mailed a letter demanding, his fees in advance, as he was entitled to do under the provisions of section 3548, Compiled Laws of 1913, and that such payment was not made. Even though the receipt of the letter was denied, its mailing was positively testified to, and under these circumstances the officer was under no further obligation to act in the premises, and the proceedings for amercement will not lie. There was no breach of duty. court was that the verdict against the defendant be set aside and the action dismissed, on the ground that the collision was the result of plaintiff's reckless driving. On December 2d a motion for rehearing was duly denied. 160 N. W. 70, L. R. A. 1917B, 753. And now, on July 11th, after the lapse of over seven months, there is filed a second motion for rehearing, without any showing only a mere contention that the decision of the court was wrong. Now, from reading the record, the decision appears to be clearly right, but, if it were wrong, that would be no sufficient reason for There allowing the motion to reconsider. must be an end to litigation. The appeal was for the December, 1915, term. Appellant's brief of 74 pages was filed February 15, 1916. Respondent's brief of 48 pages was filed June 26, 1916. There is no claim that the counsel for each party did not have a fair opportunity to argue and present the case, and the long decision, covering five large printed pages, shows that the case was well argued and considered on its merits. Motion denied. GRACE, J. I concur in the result, BRUCE, C. J., and CHRISTIANSON, J. We concur in the above. We have no right to The judgment of the district court is af- recall a remittitur in any case unless it firmed. ROBINSON, J. (specially concurring). This is an appeal from an order denying a motion to amerce the sheriff for an alleged failure to levy and return an execution for $130.53, with a subsequent credit of $61.48. The motion was made and submitted on affidavits and counter affidavits, from which it appears that such an execution was issued to the sheriff without any fees or bonds, and without instructions to make a levy on any particular property, and that the sheriff was not able to find property on which to make a levy. The motion is without any merit, and is not worthy of any discussion. Such a motion should not be sustained unless on a very clear showing of grave fault. NORDBY v. SORLIE. has been handed down by inadvertence or mistake. RANDOM v. RANDOM. (Supreme Court of North Dakota. July 11, 1917.) (Syllabus by the Court.) APPEAL AND ERROR 458(2)—STAY OF PROCEEDINGS-EXECUTED JUDGMENT-STATUTE. Section 7836 of the Compiled Laws of 1913, judge thereof from which the appeal is taken or which provides that, "When the court or the desired to be taken shall neglect or refuse to make any order or direction not wholly discretionary, necessary to enable the appellant to stay proceedings upon an appeal, the Supreme such order or direction," does not give an inCourt, or one of the justices thereof, shall make tending appellant a right to supersede a portion of a judgment or decree that is executed prior to the taking of an appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2223, 2224.] Action for divorce by Lawrence Henry (Supreme Court of North Dakota. July 13, Random against Eliza Random. Application 1917.) On second motion for rehearing. by defendant for the fixing of a supersedeas Motion bond to stay proceedings under a decree of the district court for plaintiff pending an denied. S. E. Ellsworth, of Jamestown, for petitioner. Knauf & Knauf, of Jamestown, for respondent. ROBINSON, J. This action is based on a claim of damages by reason of a collision between an automobile and a motorcycle driven by the plaintiff at a reckless dare-devil speed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes PER CURIAM. This is an application to the Supreme Court for an order fixing the sum, terms, and conditions of an undertaking which will operate to stay all proceedings upon the judgment and decree of the district court of the Fifth judicial district entered in the above-entitled action on the 3d day of May, 1917. Its main purpose is to stay the operation of that portion of the judgment of the court below, which, in an action for divorce between the plaintiff, Lawrence Ran dom and the defendant Eliza Random, found the issues for the plaintiff Lawrence Random, and awarded to him the sole custody of the minor children, aged eleven, nine, and seven years respectively together with a permission and direction to such plaintiff to take the children from the home of the defendant's parents or from any one in whose possession they might be, and allowing the plaintiff to keep the said children at his parents' home in the state of North Dakota. ROBINSON, J. This is a suit against Mr. Brown, the sheriff of Stark county, to recover possession of personal property-a gray mare and a colt-taken by him under a mortgage made by one Kramchuk. As the complaint and the evidence shows, the plaintiff purchased the property in good faith for the sum of $175, receiving a bill of sale made by the mortgagor and owner of the property, and written, witnessed, and acknowledged by M. L. McBride, who now claims the property under a chattel mortgage. The bill of sale shows payment by P. J. Stoffels; it conveys the property to P. J. Stoffels; it grants title to P. J. Stoffels; it delivers the property to P. J. Stoffels. Four times his name is written in the bill of sale by the same McBride who now seeks to avoid the bill of sale by him written, witnessed, and acknowledged as a notary public. The jury found a verdict for the plaintiff and against McBride, and he appeals, claiming that the evidence is insufficient to sustain the verdict. It is claimed there is no testimony showing that McBride had waived his mortgage lien or consented to a sale of the property without payment of the purchase price to him; but on this point the bill of sale was sufficient evidence to justify the verdict of the jury. It is in the usual form. It is sign The motion to fix the sum, terms, and conditions of a supersedeas bond is denied, for the reason that the moving papers show that the trial judge did not neglect or refuse to make an order which would enable the appellant to stay proceedings upon the appeal, in so far as any further proceedings might be had under the judgment. It appears that the judgment had been partially executed before the application was made to the district court. Under such facts the ap-ed by the mortgagor of McBride; it is in pellant is not entitled to have the executed portion of the decree stayed. We do not question the soundness of the moving party's contention that the appellant is entitled, as a matter of right, to have the sum, terms, and conditions of a supersedeas bond fixed by the trial judge and, in case of his neglect or refusal, by this court or a judge thereof. Section 7836, C. L. 1913. We cannot see that the question of the custody of the children is in any way involved in this motion. the handwriting of McBride; it discloses property included in his mortgage; it is witnessed by M. L. McBride; it is acknowledged by him as a notary public and given under his official seal. In the bill of sale the name of P. J. Stoffels is written four times by the hand and pen of McBride, and the writing appears to be that of a competent business man. If he did not trust his mortgagor to deliver the bill of sale and to receive the purchase price of the mare and colt, it were easy for him to have written in the bill of sale: "The purchase price must be paid to M. L. McBride." It is a maxim of jurispruMarch 3, dence that, where one of two innocent parties must suffer for the act of a third, he by whose negligence it happened must be the sufferer. The bill of sale was a power of attorney to the mortgagor to deliver the bill of sale and to receive the purchase money. STOFFELS v. BROWN, Sheriff. (Supreme Court of North Dakota. 1917. ESTOPPEL On Petition for Rehearing, It is a maxim of jurisprudence, when one of two innocent persons must suffer by the act of a third, he by whose negligence it happened must be the sufferer. [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 288.] Christianson, J., dissenting. Appeal from District Court, Stark County; W. C. Crawford, Judge. Action by P. J. Stoffels against George J. Brown, as Sheriff of Stark County. Judgment for plaintiff, and defendant appeals. Affirmed. Linde & Murphy, of Bismarck, and M. L. McBride, of Dickinson, for appellant. F. E. McCurdy, of Bismarck, and H. E. Haney, of Belfield, for respondent. The judgment of the district court is clearly correct, and it is affirmed. CHRISTIANSON, J. (dissenting). I have no quarrel with the doctrine of law announc ed in the majority opinion, when applied in a proper case. That doctrine is declared by our statutes to be one of the maxims of our jurisprudence. Section 7277, C. L. 1913. The trouble with the majority opinion is that the writer of that opinion has formulated a statement of facts in disregard of the evidence contained in the record, so as to bring the case within the maxim, rather than applied the maxim to the facts as established by the evidence. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes made at that time? A. I think they made an they were to take the horses home with them, agreement of this kind with Kramchuk: That and keep them a few days, and try them out to see if they proved satisfactory in working and so on, and if they did they were to pay him $175 for the mare and colt, the two horses they got of him if he would get a release and bill of sale from Mr. McBride. McBride had a mortgage on the horses." It is asserted in the majority opinion as a fact that the name "P. J. Stoffels," appearing in the bill of sale, is in the handwriting of McBride. This assertion, however, is not substantiated by one word of testimony, and is directly contrary to the positive testimony of McBride; and McBride's testimony to this effect is strongly corroborated by certain facts and circumstances in the case, and to some extent by the testimony of the plaintiff and one of his witnesses. There is no material conflict in the evi- | question? A. Yes. Q. What, if any, deal was dence in the case. The only possible question of fact is what inferences are to be drawn from certain uncontroverted facts. It is undisputed that one McBride held a chattel mortgage on the horses involved in this controversy, properly executed and delivered to him by one Kramchuk, who at that time was the owner of the horses. It is also undisputed that the mortgage was duly recorded in the office of the register of deeds of Stark county. The debt secured by the mortgage was past due, and McBride, who had been trying to collect the same, caused Kramchuk to be called to his office with respect to the matter. The only evidence as to what took place at that time is the testimony of McBride. According to McBride's testimony, Kramchuk stated that he was unable to make any payment on the indebtedness, and requested permission to sell some of the property covered by the mortgage, for the purpose of the paying off McBride's mortgage. Kramchuk further requested that McBride release his mortgage, which McBride refused to do, stating that he would release such mortgage only when the purchaser was brought to his office and the purchase price paid over to McBride and applied on the indebtedness. Kramchuk thereupon requested McBride to prepare for him a bill of sale of the horses involved in this controversy, which McBride did. McBride testified positively that the name of the plaintiff was not written into the bill of sale by himself, but that he left a blank space where such name might be inserted. It is undisputed that Kramchuk thereafter sold the horses to the plaintiff, Stoffels. There is no dispute in the evidence as to what took place at the time of the sale. The only evidence as to what took place at that time is the testimony of the plaintiff, and his son, Peter, and his son-in-law, Frame. The plaintiff, Stoffels, testified, on his direct examination, as follows: "Q. Was there anything said at the time he talked to Kramchuk about whether or not the horses were clear? A. There was a mortgage against the horses, held by Mr. McBride, but he had the bill of sale to them. * Q. Did Kramchuk tell you that McBride had a mort gage on the horses? A. Yes. * * * Q. Did you afterwards pay for the horses? A. If the horses were delivered with proper papers, the bill of sale, he would order Mr. Frame to pay them at the elevator. Q. Did Frame afterwards pay for the horses according to his order? A. Yes." The son, Peter Stoffels, testified: "Q. And when you talked to Kramchuk out there, was there anything said about there being a mortgage on the horses? A. Yes. Q. What was said? A. Well, we was down there, and Frame told him he got a mortgage down there. Mr. Frame told Kramchuk that he had a mortgage against it and he say, when he put the mortgage off, we pay him $175 when he bring us a bill of sale.' Frame testified: "Q. Were you with them at the home of It will be noted, from the testimony of the plaintiff, quoted above, that at the time the plaintiff received the horses Kramchuk stated that he (Kramchuk) then had a bill of sale. It also appears from the testimony of Frame that the horses were sold and delivered conditionally to the plaintiff on that day, in order that he (plaintiff) might "keep them a few days and try them out, to see if they proved satisfactory in working, and so on." It further appears from the testimony of Frame that Kramchuk did not deliver the bill of sale until some days thereafter. Hence, if Kramchuk had the bill of sale at the time he made the conditional sale and delivered the horses to the plaintiff, such bill of sale must have been prepared before he went to see Stoffels about the sale of the horses. The bill of sale, therefore, must have been prepared without any definite purchaser in view, to be utilized whenever Kramchuk found a purchaser for the horses. Under such circumstances it would have been necessary to leave the space provided in the bill of sale for the name of the purchaser in blank, in order that such name might be inserted when the purchaser was found. The evidence also shows that McBride and the sheriff spent considerable time in making search and inquiry to ascertain the whereabouts of the horses after Kramchuk had left the. country. If it is true, as asserted in the majority opinion, that McBride knew that Kramchuk intended to sell the horses to Stoffels, obviously such search would have been unnecessary. These various inferences certainly tend to corroborate the testimony of McBride, rather than to contradict it. The statement in the majority opinion must therefore be based upon comparison of handwriting by the members of this court. The only specimen of McBride's handwriting in the record is the bill of sale itself; and with all due respect to the expert knowledge of the writer of the majority opinion, an examination of the bill of sale leads me to the conclusion that the name "P. J. Stoffels," handwriting of McBride. The letters "S," "t," and "f," and the combination of the letters "S" and "t" in the word "Stoffels" are in every instance differently formed from where these letters or a combination thereof appear in other words written in the bill of sale. chuk his agent to make sale of the horses, and thereby waived his chattel mortgage lien thereon. While waiver may be said to be long to the family of estoppel, and the doctrine of estoppel to lie at the foundation of the law of waiver, they are nevertheless distinguishable terms, and there are several essential differences between the two doctrines. "Waiver is the voluntary surrender of a right; mischief that has followed. estoppel is the inhibition to assert it from the Waiver involves both knowledge and intention; an estoppel may arise where there is no intent to mislead. Waiver depends upon what one himself intends to do; estoppel depends rather upon what he caused his adversary to do. Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both." 40 Cyc. full knowledge of a material fact, does or for256. "A waiver exists only where one, with bears to do something inconsistent with the existence of the right or of his intention to rely upon that right.". 40 Cyc. 259. "The question which lies at the foundation of the doctrine. of waiver is mainly a question of intention, Waiver must be manifested in some unequivocal manner, and to operate as such it must in all cases be intentional. There can be no waiver, unless so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is estopped thereby." 40 Cvc. 261. The maxim set forth, in and upon which the majority opinion is based, involves negligence on the part of one party, and resulting injury to the other by reason of such neg ligence. One of the essential elements of an equitable estoppel is that the person claiming the benefit thereof must have been misled and induced by the words or conduct of another to alter his position in such way that he will be injured if the other person is not held to the representation or attitude on which the estoppel is predicated. .10 R. C. L. p. 697, § 25. "The vital principle is," said the United States Supreme Court (Dickerson v. Colgrove, 100 U. S. 587, 25 L. Ed. 618), "that he who, by his language or conduct, leads another to do what he otherwise would not have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is firmly forbidden. It involves fraud and falsehood, and the law abWaiver is a matter of fact to be shown hors both. This remedy is always so ap- by the evidence. 40 Cyc. 267. And the burplied as to promote the ends of justice. It den is upon the party claiming the waiver is available only for protection, and cannot to prove it by the preponderance of evidence. be used for a weapon of assault." "Acts 40 Cyc. 269. Waiver is a mixed question of done or knowledge acquired after the trans- law and fact; and as it is mainly a question action out of which the estoppel is claimed of intent, and since intent is an operation to arise can have no bearing upon question. of the mind, it should be proven and found The conduct or representation relied on to as a fact, and is rarely to be inferred as a raise the estoppel must have been concurrent matter of law. But when only one inference can be drawn from the facts, as established with or anterior to the action which they are by the evidence, it is the duty and province claimed to have influenced." 16 Cyc. 741. of the court to determine such question as There is no contention on the part of the one of law. 40 Cyc. 270. It is a rule of law in this jurisdiction that unconditional consent, by a chattel mort plaintiff that McBride's conduct induced plaintiff to purchase and pay for the horses. In fact, there is not even an intimation on the part of the plaintiff or any of his wit-gagee, that the mortgagor may sell the whole nesses that the plaintiff knew that McBride had prepared the bill of sale; and the undisputed testimony shows that the plaintiff did not know McBride at the time he purchased the horses, and that the plaintiff and McBride had never met until the day of the trial of the present action. Manifestly the doctrine of estoppel can have no application, unless it was shown that plaintit had knowledge of McBride's conduct, and that it was plaintiff's knowledge of and reliance upon such conduct which induced him to purchase the horses without requiring a release of the mortgage. or any part of the mortgaged property, is to that extent a waiver of the mortgage lien. But when the mortgagee gives merely a conditional consent, "and the conditions imposed relate directly to matters connected with the sale itself, and not merely to promises or acts to be performed by the mortgagor after the completion of the sale, then the consent does not become availing or effective until the condition is performed. In the case of Whitney v. Heywood, 6 Cush. 82, the Supreme Court of Massachusetts held that, where the parties to a mortgage indorsed thereon an agreement that, if the mortgagor shall sell any of the property, the mortgagee The principle of estoppel discussed in and should discharge all claim on the same upon upon which the majority opinion is based the receipt of the money therefor, this agree was not even suggested in the trial court. ment was conditional, and gave no authorThe only contention made by the plaintiff ity to the mortgagor to divest the mortupon the trial, and the only question con- gagee's interest in the property of the sale, sidered in the court below and submitted except upon a performance of the condition to the jury for determination, was whether of paying the purchase money to him. The McBride by his conduct constituted Kram- purchaser in such case, if he knew of the agreement, knew all its qualifications and | record will be searched in vain for any other conditions precedent, and was properly bound evidence, fact, or circumstance bearing on by them. If he had no such knowledge, and this question. the mortgage was duly recorded, he bought the property subject to the mortgage, and was bound to know that the mortgagor had no right to sell." Shortridge v. Sturdivant, 32 N. D. 154, 159, 155 N. W. 20. In the case at bar, as already stated, the only evidence with respect to the conditions under which the bill of sale was prepared, and the authority, if any, given by McBride to Kramchuk to sell the mortgaged property, appears in McBride's testimony; and in order that there may be no misunderstanding as to whether McBride gave Kramchuk unconditional permission to sell the horses and intended to waive his lien, I desire to quote this testimony as it appears in the record. "Q. And how did you come to draw the bill of sale, at whose request, and so on? A. Well, I had sent for Kramchuk some time before that, and he had not showed up, and he came up to the office on the date this was drawn, and stated that he wasn't able to make payment of the note, and he wanted to dispose of some of the property to pay it with, and he wanted me to give him satisfaction of the mortgage, so that he could dispose of the stuff, and I told him I wouldn't do it. I told him that if he wanted to sell this stuff, after he had found the parties to dispose of it, to bring them down to me and pay me the money, and I would give them sat isfactions." In this connection it should be mentioned that the plaintiff called the coroner, Davis, apparently for the purpose of impeaching McBride's testimony by showing a certain statement made by McBride at the time Davis served on McBride a notice that plaintiff required defendant's sureties upon the redelivery bond to justify. On direct examination Davis testified: "As I remember the conversation that took place there at the time, that McBride said that if this Kramchuk, I believe the name was, had done as he agreed when he sold this property, that this matter would have been all settled up." It is also asserted in the majority opinion that McBride constituted Kramchuk his agent for the purpose of selling the horses. Under our laws, an agency is either actual or ostensible. Section 6322, C. L. 1913. An agency is actual when the agent is really employed by the principal. Section 6323, C. L. 1913. And an agency is ostensible when the principal, intentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. Section 6324, C. L 1913. An agent has such authority as the principal actually or ostensibly confers upon him. Section 6336, C. L. 1913. Actual authority is such as a principal intentionally confers upon the agent, or intentionally or by want of ordinary care allows the agent to believe himself to possess. Section 6337, C. L. 1913. Ostensible authority is such as the principal intentionally or by want of ordinary care causes or allows a third person to believe the agent to possess. Section 6338, C. L. 1913. Ostensible agency, as well as ostensible authority, rests on the principle of estoppel, and for the reasons already stated the facts in this case do not warrant the application of the principle of estoppel, as there is no contention that Stoffels had` any knowledge of, or placed any reliance upon, anything that was said or done between Kramchuk and McBride. If Kramchuk was McBride's agent, such agency and the agent's authority must have been actual. same. It is wholly immaterial whether the pivotal question in this case be deemed one of agency or of waiver. The result must be the In either case the plaintiff had the burden of proof, and must establish the material facts involved by a fair preponderance of the evidence. If the question be deemed one of agency, plaintiff must establish the Upon his cross-examination Mr. Davis adfact of agency and the agent's authority by a mitted that there was considerable more con- Kertshner, 32 N. D. 46, 155 N. W. 37. If the preponderance of the evidence. Martinson v. versation had, and that McBride in such conversation probably told of his refusal to must establish by a preponderance of the question be deemed one of waiver, plaintiff give a satisfaction to Kramchuk, and might evidence the fact of waiver, including Mchave said that, although he (McBride) never Bride's intention to waive his lien. 40 Cyc. made any agreement to satisfy the mortgage 269. The undisputed testimony shows that and would not do it, still, if he (McBride) McBride refused to release his mortgage lien, could have gotten hold of Kramchuk in any way and gotten the money out of him, the present lawsuit would never have arisen. and that the plaintiff had not only construc- It seems to me that it is wholly immaterial which version of the conversation be accepted. Manifestly the statement testified to by Davis as having been made by McBride is not at all inconsistent with McBride's testiOn Petition for Rehearing. mony upon the trial. Of course, if Kram- BIRDZELL, J. (concurring specially). I chuk had done nothing further than McBride concur in the result reached in the original says he authorized him to do, the lawsuit opinion written by Mr. Justice ROBINSON, would never have arisen. I have quoted in but I am not convinced that the name of this opinion every iota of evidence contained Stoffels, appearing in the bill of sale, was in the record with respect to the authority written by McBride, nor do I believe that it |