51 N.W. 378 (Minn. 1892), Walter A. Wood M. & R. M. Co. v. Minneapolis & N. E. Co.

Citation:51 N.W. 378, 48 Minn. 404
Opinion Judge:Vanderburgh, J.
Party Name:Walter A. Wood M. & R. M. Co. v. Minneapolis & N. E. Co
Attorney:Koon, Whelan & Bennett, for appellant. John L. Townley, for respondent.
Case Date:February 10, 1892
Court:Supreme Court of Minnesota
 
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Page 378

51 N.W. 378 (Minn. 1892)

48 Minn. 404

Walter A. Wood M. & R. M. Co.

v.

Minneapolis & N. E. Co

Supreme Court of Minnesota

February 10, 1892

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...

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