Becker v. Cain
| Decision Date | 21 October 1899 |
| Citation | 80 N.W. 805,8 N.D. 615 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Rolette County; Morgan, J.
Action by William H. Becker against John Cain. Judgment for defendant, and plaintiff appeals.
Reversed.
Reversed, and a new trial ordered.
McDermont & Mayer, for appellant.
John Burke, for respondent.
The plaintiff sues to recover the value of a quantity of wheat which he alleges was seized and converted by the defendant on November 21, 1895. The complaint alleges that the plaintiff was the owner of and in possession of the wheat in question at the time it was taken by the defendant, and that said wheat was then in a car standing on the side track of the Great Northern Railway in Rolla, in this state, and was in amount 1,050 bushels, and of the value of $ 550. The answer admits the seizure of the car of wheat, but by denials places in issue plaintiff's ownership and his possession of the same, and by way of justification for his acts defendant alleges that he took possession of said wheat as sheriff of Rolette county, and in an action in claim and delivery, in which Reandean Bros. were plaintiffs and the Alliance Mortgage & Investment Company was defendant. It is thus apparent that defendant's answer not only challenged plaintiff's right to recover anything by denying his ownership, but that it also attempted to lay a foundation for a justification of his acts in any event, and an exemption from liability, by showing that he took the grain in the performance of his duties as sheriff, and in obedience to the commands of the papers in his hands, and from the possession of the defendant in that action. The case was tried to a jury, and a verdict unfavorable to plaintiff was returned. Plaintiff made a motion for a new trial, and this was overruled. His appeal is from the order overruling this motion.
The settled statement upon which the motion for a new trial was made specifies certain particulars in which it is claimed the evidence is insufficient to justify the verdict, and also contains numerous specifications of alleged errors of law occurring at the trial; all of which are urged by counsel in his assignments of errors as grounds for a reversal of the order refusing to grant a new trial. But, inasmuch as we have found it necessary to order a new trial because of prejudicial errors which occurred in the admission of certain evidence which we shall discuss, no other assignments will be considered, as it does not seem probable that the same questions will arise upon the new trial. It appears that at the time when the alleged conversion occurred the plaintiff was engaged in dual occupations; one of which was the buying and shipping of grain, the other the practice of his profession as an attorney at law. It is shown that he acted as attorney for defendant in the claim and delivery action in which the wheat in question was taken; that in behalf of the defendant in that action he served a notice requiring plaintiff's sureties upon the claim and delivery bond to justify; further, that he was present at the trial as counsel for the defendant, and argued the case to the jury. The error which we will consider, and which renders a reversal necessary, consists in the injection into the evidence in this case over plaintiff's objection, of a certain isolated statement of plaintiff, Becker, made in his argument to the jury in the trial of that case. After he had testified as to his ownership of the grain, and generally in support of the...
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