Churchill v. Ackerman

• Decision Date: 05 March 1900
• Citation: 22 Wash. 227,60 P. 406
• Parties: CHURCHILL v. ACKERMAN.
• Court: Washington Supreme Court

60 P. 406

22 Wash. 227

CHURCHILL v. ACKERMAN.

Supreme Court of Washington

March 5, 1900

Appeal from superior court, Whitman county; William McDonald, Judge.

Action by Henry Churchill against Henry Ackerman. From a judgment for plaintiff, defendant appeals. Reversed.

Chadwick & Bryant, for appellant.

J. T Brown, for respondent.

DUNBAR J.

This is an action for damages for the conversion of wheat, the alleged property of the respondent, by the appellant. The complaint in substance alleged ownership and possession of a certain tract of land in Whitman county, Wash., and ownership of a certain volunteer crop of wheat which had grown on said land in the year 1897; that on the 26th day of July, 1897 defendant wrongfully and unlawfully entered upon said land and wrongfully and unlawfully harvested and converted to his own use 274 sacks of wheat grown on said land; that said wheat was of the value of $550,--and asked for damages in the sum of $650. The answer denied the allegations of the complaint, and alleged that the defendant had entered into the possession of the lands described in the complaint, and other lands, under a Northern Pacific land contract, made on the 11th day of January, 1892, whereby the said Northern Pacific Railroad Company agreed to sell to the defendant the said lands for a certain stipulated consideration; that the defendant had been put into the possession of the said land by the said Northern Pacific Railroad Company, and that he had continued so in possession until the 1st day of February, 1898; that during the year 1897, while thus in the peaceable and open possession of said land, defendant by his own effort raised thereon a crop of grain, and had the same harvested and sacked, and was the owner thereof, and was in the possession thereof, on or about the 20th day of August, 1897, when the plaintiff wrongfully entered upon said land, and wrongfully took and converted to his use 100 sacks of threshed wheat, without the consent and against the will of the defendant; that said 100 sacks were of the value of $140, and the sacks which contained the wheat were of the value of $6,--and asked for damages in the sum of $146. The reply of the plaintiff denied the allegations of the answer generally, and admitted that on the 11th day of January, 1892, the defendant had entered into the contract with the Northern Pacific Railroad Company as alleged in the answer, but affirmed that since the 18th day of August, 1896, and from thence to July 3, 1897, the Northern Pacific Railway Company became and was the owner of the land and contract mentioned in defendant's answer; that the Northern Pacific Railway Company, prior to October 15, 1896, under the terms of their contract with defendant, had given the defendant notice in writing, as provided in their contract, that all his right, title, interest, estate, and possession of, in, or to said land under said contract had become wholly forfeited by the defendant, and had been terminated and canceled and annulled by it, as it had a right to so forfeit by reason of the conditions of the contract aforesaid; that thereafter, on the 31st day of January, 1897, the Northern Pacific Railway Company, under the conditions of the said contract and as owner of the said land and contract, notified the defendant that all his rights of ownership or possession to said land were forfeited, etc.; that the Northern Pacific Railway Company thereafter remained in possession of said land until the 23d day of July, 1897, at which time it sold said land to plaintiff, and placed him in possession thereof, from which said time plaintiff has been in possession thereof. A demurrer to the complaint, a motion directed to the second amended reply, and a demurrer to the second amended reply, were overruled by the court. Upon the completion of plaintiff's testimony in chief, the defendant moved the court for a nonsuit, which motion was overruled. The cause was tried by a jury, and a verdict rendered in favor of the plaintiff in the sum of $200.

Very lengthy instructions were given by the court. Some of the instructions involved questions which were not in issue, and upon which no testimony had been adduced; and for this reason the judgment would have to be reversed in any event. We will not notice many of the alleged errors (as it is not necessary to do so under the view we take of the law governing the case), such as errors alleged in the admission and rejection of testimony, the competency of the testimony in relation of the notice given by the Northern Pacific Railroad Company to the defendant, or the right of the plaintiff to the possession of the land in question before the reception by him of the contract between himself and the Northern Pacific Railway Company; for there is a question at the threshold of this case which determines it. It is presented both by the motion for default,--namely, reason No. 3, that there is no evidence submitted to the court showing that the plaintiff was ever in possession of said lands prior to the time of harvesting and removal of said crops,--and by the seventh instruction, which was duly excepted to and which is as follows: 'You are further instructed that if you find from the evidence that the defendant did purchase the land in question prior to July, 1897, upon contract for payments therefor in installments, and said contract contained a forfeiture clause, as defined in the last instruction, and that the party of whom he purchased notified him of his delinquency, and of its election to declare his forfeiture, in the manner and form provided in the contract of purchase, and that subsequent to the time of such notice of such forfeiture the grantor, or its successors in interest, sold to the plaintiff the land in question, such sale to the plaintiff would carry with it the title to any crop growing upon said land...