Carson State Bank v. Grant Grain Co.

• Decision Date: 23 January 1924
• Citation: 50 N.D. 558,197 N.W. 146
• Parties: CARSON STATE BANK v. GRANT GRAIN CO. et al.
• Court: North Dakota Supreme Court

50 N.D. 558

197 N.W. 146

CARSON STATE BANK

v.GRANT GRAIN CO. et al.

Supreme Court of North Dakota.

Jan. 23, 1924.

Syllabus by the Court.

Under section 7820, C. L. 1913, to be effective, an appeal from a judgment must be taken within six months from date of notice of entry thereof.

Error may not be predicated upon an adverse ruling on a motion for directed verdict made at the close of the plaintiff's case where the defendant thereafter introduces evidence, and fails at the close of the whole case to renew the motion for directed verdict.

Under chapter 133, Laws 1921, a motion for a directed verdict at the close of the whole case is a prerequisite to a subsequent motion for judgment notwithstanding the verdict.

The interest of the holder of a storage ticket for grain deposited with a warehouseman attaches proportionately, to the extent that is required to redeem all outstanding storage tickets, to all the grain of kind and quality described in his receipt that may at any time subsequent to its issuance be received on account of purchase or general storage into the warehouse; and this is so even though at some intervening moment there may be no grain whatsoever therein.

A demand made by the holder of a storage receipt for the grain represented thereby is sufficient, when refused, to warrant an action in conversion, even though not accompanied by an offer to pay storage and other charges accrued, where the refusal is on the ground that there is in no event any liability on account of the grain demanded.

Record examined, and held, that the evidence is sufficient to sustain the verdict.

Appeal from District Court, Grant County; F. T. Lembke, Judge.

Action by the Carson State Bank against the Grant Grain Company and the Equity Co-operative Exchange. From a judgment for plaintiff, the defendant last named appeals. Affirmed.Sinness, Duffy & Wheeler, of Devils Lake, and Drake, Solether, Day & Evans, of Minneapolis, Minn., for appellant.

Jacobsen & Murray, of Mott, for respondent.

NUESSLE, J.

This action was brought to recover on account of the conversion of certain grain. The complaint alleges that the defendant Grant Grain Company was engaged in business as public warehouseman, and as such bought and received for storage wheat and other small grains, and shipped and sold the same to and in the terminal markets at St. Paul, Minneapolis, and Duluth; that the Equity Co-operative Company was engaged in the business of buying and selling grain in such markets; that the defendant Grant Grain Company, as such public warehouseman, during the fall of 1920 received in storage from certain farmers in and about the village of Carson, N. D., certain wheat and rye, and issued storage receipts therefor whereby the said Grant Grain Company contracted to deliver to such depositors or their assignees upon demand the same amount of grain of the same quality and grade as received in store; that such depositors to whom receipts were issued have assigned the same to the plaintiff, and that the said plaintiff is the owner and holder of such receipts and the owner of the grain represented by them; that the said Grant Grain Company, without the knowledge or consent of the depositors of said grain and the holders of said storage tickets, shipped and sold the grain to the defendant Equity Co-operative Exchange and others, and failed to keep any grain in storage anywhere with which to redeem and make redelivery of the grain represented by such storage tickets; that the said Equity Co-operative Exchange converted all of the said grain to its own use; that prior to the commencement of the action plaintiff made demand upon the defendants, and each of them, for the redelivery of so much of said grain as might be necessary to redeem the said storage tickets or for the payment of the value thereof, which demand was refused; that such grain was of the reasonable value of $8,000; and demands judgment therefor with interest from the date of the conversion.

The defendant Equity Co-operative Exchange answered to this complaint, alleging that it is a corporation engaged in the business of purchasing and selling grain on commission at St. Paul, Minneapolis, and other places, and denies all of the other matters and things set out and alleged in plaintiff's complaint. It further alleges that, if any stored grain belonging to the plaintiff or plaintiff's assignors came into its possession, the same was shipped to it by the Grant Grain Company in the usual course of business, and with the knowledge, consent, acquiescence, and authorization of the plaintiff and its assignors; that the Grant Grain Company, as a public warehouseman under the laws of the state of North Dakota, made and filed with the officers of the state of North Dakota, as required by law, a bond as a licensed warehouseman in the sum of $5,000; that the plaintiff has failed, neglected, and refused to enforce the obligations of such bond, and to make any demand upon the sureties therein for the delivery of said grain, or for payment therefor; that the plaintiff does not represent and is not the assignee of all persons to whom storage tickets were issued by said Grant Grain Company during the time set out in the complaint, and that there are many other persons holding outstanding storage tickets issued during said time by the Grant Grain Company; that the Grant Grain Company is solvent, and possessed of means to discharge and fulfill all obligations and make all payments necessary for the discharge of its obligations as a public warehouseman to the plaintiff and the plaintiff's assignors; that while the storage tickets involved in the action were outstanding, the Grant Grain Company sold the grain represented thereby and deposited the proceeds of such sale in the plaintiff bank for the benefit of the storage ticket holders, and informed the plaintiff of such fact; that the plaintiff willfully, and against the will and without the consent of the Grant Grain Company, appropriated such funds in the sum of $3,000 to its own use by charging against such deposits certain obligations owed to it by the Grant Grain Company; that such money so appropriated should be credited upon the storage tickets involved in the action.

No service was made on certain of the named defendants, and the case was dismissed as to all of the others excepting the Equity Co-operative Exchange.

The case was tried to a jury. At the conclusion of the plaintiff's case the defendant moved for a directed verdict. This was denied. The defendant then offered evidence in support of its answer, but failed to renew its motion for a directed verdict at the close of the whole case. A verdict was returned in favor of the plaintiff for the sum of $2,473.73, and judgment was entered thereon on the 19th day of December, 1922. Thereafter the defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial. Such motion was denied. On the 17th of July, 1923, the defendant perfected this appeal from the order denying such motion and from the judgment.

The record establishes that the plaintiff was a North Dakota banking corporation doing business at the village of Carson. The Grant Grain Company had an elevator at Carson, and during the grain season of 1920 received and issued storage tickets for grain. Certain of these storage tickets were in May, 1921, assigned to the plaintiff. These particular tickets were issued between September 17, 1920 and November 30, 1920-most of them prior to October 6th. It appears that the grain company from time to time shipped out the grain received by it. Such shipments were made to various commission houses at the terminal markets. The tickets held by the plaintiff called for wheat and rye. The first shipment consigned to the defendant Equity Co-operative Exchange was made on December 7, 1920. Thereafter, and between that date and February 25th following, seven cars of wheat and one bulkhead car loaded with rye and flax were consigned to it. On October 6, 1920 there were in the grain company's elevator at Carson only 495 bushels 45 pounds of wheat, although plaintiff's storage tickets for 2,661 bushels were then outstanding. Thereafter, and between that date and December 7th, several cars of wheat were shipped out consigned to others than the defendant company. On December 2d all the rye in the elevator was shipped to the Atwood Larson Company at Duluth. So that in fact on December 7th no rye was in the grain company's elevator, and probably none of the wheat actually deposited by the plaintiff's assignors, and therefore it is plain that such rye as was shipped to the defendant, and probably such wheat as was shipped to the defendant, was never at any time physically a part of the common mass contributed to by the assignors of the storage tickets to the plaintiff.

The defendant company was engaged in the selling of grain at the terminal markets on commission. Such grain as it sold on account of shipments from the Grant Grain Company it accounted for, deducting only the customary commission for its services in the making of such sales. The proceeds of such sales were remitted to the Grant Grain Company and deposited in the plaintiff bank, which had knowledge that such deposits were the proceeds of sales of grain shipped by the grain company. The defendant exchange had no actual notice that the grain sold by it was stored grain. But it knew that the Grant Grain Company was in the grain warehouse business.

The Grant Grain Company owed the plaintiff bank $3,000 on certain notes. These notes fell due in December, 1920, and were paid by the bank charging the grain company's account, replenished by the proceeds of the sale of stored grain, with the amount of the notes and interest, and placing a slip showing the transaction among the canceled and paid checks returned to the grain company. There is a dispute in the testimony as to whether this was done with the consent of the...