See, First State Bank of Cooperstown v. Ihringer, 217 N.W.2d 857 (N.D. 1974). The legal concept announced in Baird v. Meyer, supra, has not been changed, and furthermore, to our knowledge the Minnesota Court has not departed from its ruling in Winne v. Lahart, supra, which is in complete harmony with Baird. Cf., Advance-Rumely Thresher Co. v. Johnson, 62 N.D. 553, 243 N.W. 919 (1932) (action to foreclose chattel mortgage with acceleration clause in mortgage and note). We believe those cases set forth the applicable case law to resolve the issues raised by the Johnsons.
From such facts the payee's ownership will be presumed. This court so held in the case of J.I. Case Threshing Machine Co. v. Simpson, 54 Mont. 316, 170 P. 12. Additional authorities are: 8 Am. Jur., Bills Notes, sec. 954, pages 563, 564; 10 C.J.S., Bills Notes, sec. 594, page 1218; Albergo v. Gigliotti, 96 Utah 170, 85 P.2d 107, 129 A.L.R. 967; First National Bank of Tucumcari v. Lutz, 28 N.M. 615, 216 P. 505; Phillips v. Oppenheim, 125 Okla. 181, 256 P. 352; Van Marel v. Watson, 28 Ariz. 32, 235 P. 144; Dysert v. Weaver, 46 Cal.App. 576, 189 P. 492; Hobbs v. Citizens' Bank of Wrens, 32 Ga. App. 522, 124 S.E. 72; Gibson v. Hannay, 198 Iowa 930, 200 N.W. 579; Kirby v. Robinson, 226 Mo. App. 561, 44 S.W.2d 253; Thompson v. Johnson, 202 N.C. 817, 164 S.E. 357; Advance-Rumely Thresher Co. v. Johnson, 62 N.D. 553, 243 N.W. 919; Western Southern Fire Ins. Co. v. Murphey, 56 Okla. 702, 156 P. 885; Schott v. Glen-Dial, Inc., 188 Okla. 201, 107 P.2d 803; Dant Russel v. Ostlind, 148 Or. 204, 35 P.2d 668; Buckman v. Hill Military Academy, 182 Or. 621, 189 P.2d 575; Union Guano Co. v. Garrison, 130 S.C. 404, 126 S.E. 133; Hecht v. Weissenberger, Tex. Civ. App., 49 S.W.2d 872; Peters v. Lyles-Madry Implement Co., Tex. Civ. App., 41 S.W.2d 69; Barton v. Pochyla, Tex. Civ. App., 243 S.W. 785. Thus the causes of action were properly pleaded in plaintiff's [3] complaint; there was no necessity to amend the complaint; and the court erred in sustaining the objection to the introduction of evidence and in entering judgment of dismissal.
Therefore he could not rescind because a rescission contemplates that he who rescinds shall return that which he received and receive back that which he gave. See ยงยง 5936, Comp. Laws 1913 and 6002a69, Supplement; Dwinnell v. Boehmer, 60 N.D. 302, 234 N.W. 655, supra; Allis-Chalmers Mfg. Co. v. Frank, 57 N.D. 295, 221 N.W. 75; Advance-Rumely Thresher Co. v. Johnson, 62 N.D. 552, 243 N.W. 919, and cases cited. Finally, the plaintiff urges that the court erred in ordering judgment notwithstanding the verdict instead of ordering a new trial.