Agency v. Larson
| Decision Date | 02 February 1926 |
| Docket Number | No. 5042.,5042. |
| Citation | 207 N.W. 1003,53 N.D. 621 |
| Parties | FARGO LOAN AGENCY v. LARSON et al. |
| Court | North Dakota Supreme Court |
One W., January 25, 1923, executed and delivered to defendant a chattel mortgage on the half of the crop to be raised during the farming season of 1923, on certain farm lands therein described, in which he then had no interest as tenant or otherwise. Subsequently he became tenant on shares of the owner of the land under a farm lease, executed April 9, 1923.
Held, the title, right, and interest acquired by the mortgagor by virtue of that lease inured to the benefit of the mortgagee as security for the debt described in the mortgage, relating back to the time of the execution of the mortgage.
Held, further, that said chattel mortgage attached only from the time of the execution of the farm lease and to the extent, only, of the mortgagor's interest in the crops.
Where the plaintiff had moved for a directed verdict, and where, upon the entire record, it is evident that plaintiff, as a matter of law, was entitled to judgment on the merits in a sum in excess of the amount awarded by the verdict of the jury, the amount plaintiff is entitled to recover being shown by undisputed evidence, and there being no reasonable probability that a different result would be reached upon another trial, the trial court may properly enter judgment non obstante for the amount the proofs show plaintiff entitled to recover.
A question not raised in the trial court will not be considered on appeal to the Supreme Court.
It is held, for reasons stated in the opinion, that this action was commenced and prosecuted with reasonable diligence.
One whose interest in grain which has been converted is special and limited is entitled to recover such an amount only as will compensate him for the loss of, or damage to, that interest.
Appeal from District Court, Stark County; F. T. Lembke, Judge.
Action by the Fargo Loan Agency against L. E. Larson and another for the conversion of grain. From a judgment for the plaintiff, defendants appeal. Remanded with directions to modify, and, as modified, to be affirmed.Harvey J. Miller, of New England, for appellants.
G. R. Brainard and Otto Thress, both of Dickinson, for respondent.
Plaintiff alleges defendants converted 288 bushels of wheat belonging to it by the terms of a farm lease of the land on which the grain was grown. The case was tried to a jury at the November, 1924, term of the district court of Stark county. At the close of the evidence, plaintiff and defendants made motions for directedverdicts, which motions were denied by the court and the issues submitted to the jury, which rendered a verdict in favor of the plaintiff for $43.43. Thereupon plaintiff moved for judgment non obstante for a sum equivalent to the value of 288 bushels of wheat at the price of $1.41 per bushel, which plaintiff claimed was the highest market price of the wheat between the time of the alleged conversion and the trial of the case; and defendants likewise moved for judgment of dismissal of said action. The trial court granted plaintiff's motion, and judgment was accordingly entered in favor of the plaintiff in the sum of $406.08 and the costs of the action, and it is from this judgment defendants have appealed.
Plaintiff, as owner of the east half of the northwest quarter and lots 1 and 2 of section 19, township 137 north, of range 96 west, situated in Stark county, N. D., entered into a leasing contract with Mike P. Wanner, whereby the latter agreed to farm the land, during the farming season of 1923, on shares; plaintiff to furnish the seed and pay half the threshing machine bill, and each to have one-half of the crops raised. It was further agreed that the lessee should sow the land to wheat; that in the event the land should remain listed for state hail insurance, the lessee should pay the one-half of same and that his share of the crop should stand as security therefor; that the lessee should pay a note of $149.76 and interest, and that his share of the crops should be charged therewith; that the lessee should deliver lessor's one-half share of the crop in an elevator; that the remainder of the crop should be safely stored by lessee and to remain in the possession of the lessor until all the covenants of the lease should be fulfilled; and that if any of the land should be planted to grain other than wheat, the plaintiff reserved the right to select wheat in place thereof. There is also a clause in the contract in the form of a mortgage, reciting, in effect, that lessee mortgaged to lessor his interest in the crops to secure the performance of all acts agreed to be performed on the part of the lessee.
January 25, 1923, Wanner made chattel mortgage in favor of defendant Bresden-Larson Lumber Company, covering one-half of the crops to be raised on said premises during the year 1923, to secure his note to defendant in the sum of $1,248.60, which was not paid at the time of the conversion or at the time of the trial.
It is admitted that Wanner harvested from said land 850 bushels of wheat and certain oats and barley. It is undisputed that plaintiff elected to take wheat in the place of the oats and barley. Wanner delivered 434 bushels of the wheat to plaintiff and stored the remainder in a granary on said premises, in accordance with the terms of the contract, to be held until the provisions thereof had been performed. The granary door was locked and the windows fastened or boarded up. It is also undisputed that on September 14, 1923, defendant Bresden-Larson Lumber Company sent trucks from New England to said premises to haul said stored wheat to New England. The granary was broken into by the men in charge of the trucks, and 312 bushels of said wheat taken therefrom. Plaintiff learned of the taking of the wheat about December 13, 1923. Thereafter, plaintiff, through its attorney, G. R. Brainard, interviewed Jones, the agent for Bresden-Larson Lumber Company, upon several occasions, in an effort to obtain an adjustment of the matter; and said attorney had some correspondence with L. E. Larson, an officer of the defendant company, in regard to a settlement of the matters in difference. Jones stated to Brainard that he expected to be able to obtain a settlement of the controversy and that suit would not be necessary. These negotiations for settlement covered some considerable time; they failed, and this action was commenced July 25, 1924.
[1] We first note appellant's contention that the farm lease was executed by the parties thereto October 28, 1922; that at the time it was executed, there was no provision therein relative to the note of $149.76; that said provision was written into the contract April 9, 1923, subsequent to the date of the execution of defendant's chattel mortgage on the crop, and consequently subsequent and inferior to the lien of said chattel mortgage. The undisputed testimony, however, shows the contrary, and is a sufficient answer to appellant's contention. Wanner testified he did not know whether he was to have the use of this land until shortly before seeding time the spring of 1923; that he went to Dickinson three or four times to see Brainard, attorney for the plaintiff, and also wrote letters to him relative to the leasing of the premises; that no contract was made for the land the fall of 1922; that it was signed the spring of 1923, and when signed the conditions relative to the note then appeared in the contract. Brainard, who was looking after the land for plaintiff, testified the negotiations relative to leasing the land between Wanner and himself commenced in September, 1922, and were not completed until the contract, embodying the condition relative to the note, was accepted by Wanner. The evidence shows positively that the contract was not signed until shortly before seeding time, the spring of 1923. It is dated April 9, 1923, and Wanner, in writing, acknowledged receipt of a copy of it on that date.
Appellant asserts that the note in question was not in the nature of an advancement under the contract, and did not, therefore, constitute a lien on Wanner's share of the crop, superior to the lien of appellant's chattel mortgage. Wanner understood the contract to be that he was to give to plaintiff, for the lease of the land, one-half of the crops grown and harvested therefrom, and in addition thereto, from the other one-half of the crop was to pay the note, hail insurance, one-half the threshing bill, and other advances, if any, made him by plaintiff. The plaintiff so understood the contract, for Brainard testified that Wanner could not have had the use of the land on any other conditions. Indeed, there is no controversy whatever between the parties to the lease as to the terms thereof. Each endeavored to perform the conditions of the lease conformably to the mutual understanding of its terms. Both landlord and tenant are in accord that the wheat stored in the granary was in the possession of the plaintiff, and was stored for the purpose of protecting plaintiff, to the extent of its interest therein.
The owner of farm land and the lessee have the undoubted right to incorporate in their contract of lease such conditions in relation to the crops to be raised therefrom as they in good faith mutually agree upon; and those claiming through or under the tenant acquire no greater rights in the subject of the contract than the tenant has under that contract.
At the time of the execution of defendant's mortgage, the mortgagor, Wanner, had no interest whatever, as tenant or otherwise, in the land in question or the crops to be raised thereon during the farming season of 1923 covered by the mortgage. Later, by and through the execution of the lease contract, executed April 9, 1923, he did acquire an interest in the property described in the mortgage. The title, right, and interest acquired by the mortgagor, by virtue of...
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