Casey v. First Bank of Nome

• Decision Date: 14 May 1910
• Court: North Dakota Supreme Court

126 N.W. 1011

20 N.D. 211

THOMAS CASEY v. FIRST BANK OF NOME

Supreme Court of North Dakota

May 14, 1910

Appeal from District Court, Barnes county; E. T. Burke, J.

From a judgment in defendant's favor and from an order denying a motion for a new trial, plaintiff appeals.

Affirmed.

A. P Paulson, for appellant.

Page & Englert, for respondent.

OPINION

FISK, J.

Plaintiff sues to recover damages for the conversion by defendant of 405 bushels of wheat, alleged to have been the property of plaintiff at the date of such alleged conversion. The answer amounts to a general denial. The issues were tried to a jury, and a verdict in defendant's favor was returned upon which verdict a judgment was entered accordingly. Thereafter a motion for a new trial was made and denied, and the appeal is both from the judgment and from the order denying the motion for a new trial.

The grain in controversy was grown, during the season of 1906, upon land owned by the plaintiff. One Abrahamson raised said grain under the usual cropper's contract theretofore entered into between himself and plaintiff, by the terms of which plaintiff was to furnish the seed and pay one half of the threshing-machine bill. Abrahamson was to farm the land at his own expense and to pay all bills except as above stated, and he was to plow back a certain portion of the land in the fall. The title of all grain was to remain in plaintiff until such plowing was done and a settlement made, when Abrahamson was to receive one half of all crops thus raised.

It is an undisputed fact in the case that defendant bank took and appropriated, by Abrahamson's consent, 405 bushels of the wheat, applying the proceeds upon certain indebtedness due by Abrahamson to the bank. At the time said wheat was appropriated no division had been made of the grain, nor had any settlement between plaintiff and Abrahamson been effected. The case was tried in the court below by both parties, upon the theory that no recovery could be had by plaintiff if, at the time this grain was appropriated by the defendant, Abrahamson was equitably entitled to such grain. Such theory must prevail in this court in disposing of the questions presented. Counsel, in adopting such theory, were, no doubt, attempting to follow the rule in such cases as announced by this court in Aronson v. Oppegard, 16 N.D. 595, 114 N.W. 377; but in that case it was held merely that it is proper to show in mitigation of damages the extent of plaintiff's interest in the grain, and to this end defendant may show the status of the account between plaintiff and the cropper under the contract between them. Manifestly, as against defendant, plaintiff should recover no more damages than he has suffered by reason of the taking and appropriating of the grain as aforesaid. The extent of his interest measures the extent of the detriment suffered by him by reason of the taking and appropriating of such grain, with the exception of any special damages which are alleged and shown. The theory adopted by counsel is but another way of invoking the principle above stated.

The first nine assignments of error are mere duplicates of the so-called specifications of error in the abstract. Assignments 1 to 6 inclusive relate to the question of the sufficiency of the evidence to support the verdict. It is urged by respondent's counsel that such assignments constitute mere statements of what the ultimate facts show, and that they are insufficient in that they fail to point out the particulars wherein the evidence does not sustain the verdict. Such criticism is not wholly without merit; but it is unnecessary to pass upon such objections, as the question of the sufficiency of the evidence to support the verdict is properly raised under other assignments.

Assignment numbered 11 predicates error upon the denial of the motion of defendant for a new trial. Such assignment requires a review of such specifications as are properly made and incorporated in the settlement of case, and we think that the so-called...