Walter A. Wood M. & R. M. Co. v. Minneapolis & N. E. Co.
| Citation | 51 N.W. 378,48 Minn. 404 |
| Parties | Walter A. Wood M. & R. M. Co. v. Minneapolis & N. E. Co |
| Decision Date | 10 February 1892 |
| Court | Supreme Court of Minnesota (US) |
January 4, 1892, Submitted on Briefs
Appeal by defendant, Minneapolis & Northern Elevator Company, from an order of the district court of Hennepin county, Hooker J., made August 3, 1891, overruling its demurrer to the complaint.
This action was commenced January 14, 1891. The complaint stated that Duncan McKellar on August 10, 1889, made and delivered to the plaintiff, Walter A. Wood Mowing & Reaping Machine Company, a mortgage on 40 acres of wheat to be raised in each of the years 1890 and 1891 on the northeast quarter of section four, (4,) township 161, range 76, in Bottineau county, N. D., containing 160 acres, and then in his possession; that the mortgage was made in good faith to secure a debt of $ 140 he owed it, and was duly filed.
It further stated that in the year 1890 McKellar sowed 75 acres of this land to wheat, and raised thereon about 600 bushels which he cut, threshed, and delivered to the defendant, and that it had notice of plaintiff's mortgage, but by its duly-authorized agent took the wheat, and converted it to its own use; that plaintiff was entitled to 222 bushels of this wheat by virtue of its mortgage, and that its value was $ 140; that plaintiff demanded of defendant that part of the wheat, but it refused to deliver it or pay for it, to plaintiff's damage $ 135. A copy of the mortgage was attached to the complaint.
The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled, and defendant appealed.
Order reversed.
Koon Whelan & Bennett, for appellant.
The mortgage, as to the wheat, is void because the description of it is indefinite and uncertain, and because the facts alleged in the complaint render the description of the wheat indefinite and uncertain in fact. Parker v. Chase, 62 Vt. 206; Price v. McComas, 21 Neb. 195; Dodds v. Neel, 41 Ark. 70; Krone v. Phelps, 43 Ark 350; Watson v. Pugh, 51 Ark. 218; Kelly v. Reid, 57 Miss. 89; Fowler v. Hunt, 48 Wis. 345; Blakely v. Patrick, 67 N.C. 40; Stonebraker v. Ford, 81 Mo. 532; Richardson v. Alpena Lumber Co., 40 Mich. 203; Cass v. Gunnison, 58 Mich. 108.
John L. Townley, for respondent.
The description of the wheat mortgaged was sufficiently definite and certain. Wade v. Strachan, 71 Mich. 459; Muse v. Lehman, 30 Kan. 514; Nichols, Shepard & Co. v. Barnes, 3 Dak. 148; Close v. Hodges, 44 Minn. 204; Bretz v. Diehl, 117 Pa. St. 589; Newell v. Warner, 44 Barb. 258; Kimberly v. Patchin, 19 N.Y. 330.
The plaintiff claims to be entitled to certain wheat in defendant's possession by virtue of a chattel mortgage made by one McKellar, who raised the wheat, and is alleged to have wrongfully sold and delivered the same to the defendant notwithstanding the mortgage. The mortgage was dated August 10, 1889. It was given to secure two notes, of $ 70 each, and was intended to cover a part of the next year's crop of the mortgagor; the description therein being as follows: "All the crops, wheat, oats, barley, flax, and corn, that shall be sown, planted, grown, raised, or harvested during the years A. D. 1890, 1891, on the following described land, now in my possession, in the town 161, R. 76, county of Bottineau and state aforesaid, to wit, 40 acres of wheat on N. E. 1/4, sec. 4, T. 161, R. 76." It is also alleged that the mortgagor raised on seventy-five (75) acres in said quarter section a large crop of wheat, which, when harvested and threshed, amounted to about six hundred (600) bushels. The plaintiff claims and alleges that the wheat raised on forty (40) acres out of the seventy-five (75) acres mentioned was subject to the lien of the mortgage, and amounted to about two hundred and twenty (220) bushels; but that the mortgagor sold and delivered to the defendant the entire product of the seventy-five (75) acres, in fraud of the rights of the plaintiff. It does not appear that any attempt was ever made to sever the crop raised on forty (40) acres, or the two hundred and twenty (220) bushels alleged to have been raised thereon, from the whole product or mass of wheat raised on the seventy-five (75) acres, or that the yield was uniform over the tract. It is alleged that ...
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