Avery v. Stewart
| Decision Date | 22 December 1898 |
| Docket Number | Nos. 11,302-(162).,s. 11,302-(162). |
| Citation | 75 Minn. 106 |
| Parties | HOYT A. AVERY v. SYLVESTER STEWART. |
| Court | Minnesota Supreme Court |
cause was tried before C. L. Brown, J., and a jury, which rendered a verdict for $311.61 in favor of plaintiff. From an order denying a new trial, defendant appealed. Affirmed.
H. T. Bevans and James I. Best, for appellant.
Geo. E. Darling, for respondent.
On February 1, 1897, a certain savings bank was the owner of a certain section of land in this state, on which there were 400 acres of land under cultivation. On that day the bank entered into a contract with one Dolven, whereby he agreed during the following spring to sow 350 acres of the 400 to wheat, and the other 50 acres to oats, to harvest and thresh said grain, and furnish all machinery and labor therefor. It was further agreed that the bank was to retain all the wheat grown on an average 50 acres of the 350 acres of wheat, and one-half the wheat grown on the other 300 acres; Dolven to have the other half, and all of the 50 acres of oats, on the full performance on his part of all the conditions of the contract. It was further provided that, until division of the grain, he could not remove any of it, and until such division the title and possession of all of the grain should remain in the bank. In May of that year the bank assigned this contract to plaintiff.
Dolven sowed, harvested and threshed the grain. He subsequently removed and sold some of the wheat to defendant, and plaintiff brought this action for the conversion of the same. On the trial, the court ordered a verdict for plaintiff, and, from an order denying a new trial, defendant appeals.
The only point urged is that, on the evidence, the jury were warranted in finding a verdict for defendant, and therefore the court erred in ordering a verdict for plaintiff. We cannot so hold. The sale and delivery of the wheat to defendant was conclusively proved, and the value of it was admitted. As a defense, defendant introduced evidence tending to prove that, at the time of threshing, Dolven divided all of the wheat into two equal parts, and put one part in a bin in the granary for plaintiff, and the other part in another bin for himself; that he subsequently hauled the part intended for plaintiff to the elevator, as provided by the contract and delivered it there for plaintiff, and he hauled off and sold as his own the other half of the wheat.
It was also proved that plaintiff's agents were present at the time of the threshing of a part of this wheat, and assisted in so dividing such part. But it did not appear what authority these agents had, or that they had authority to give...
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