Clendening v. Hawk

• Decision Date: 27 May 1899
• Citation: 79 N.W. 878,8 N.D. 419
• Court: North Dakota Supreme Court

79 N.W. 878

8 N.D. 419

A. E. CLENDENING v. M. E. HAWK

Supreme Court of North Dakota

May 27, 1899

Appeal from District Court, Cass County; Pollock, J.

Action by A. E. Clendening against M. E. Hawk. Judgment for defendant, and plaintiff appeals.

Reversed.

Judgment reversed, and a new trial ordered.

Benton Lovell & Bradley, for appellant.

The Court erred in directing a verdict for defendant. It is only where there is no legal evidence which if believed will establish a fact material to the plaintiff's case that the Court can direct a verdict. Carver v. Plank Road Co., 61 Mich. 584. Where evidence is conflicting, or the credibility of witnesses is questioned the case is for the jury. Houch v. Gue, 46 N.W. 280; United States v. Tillotson, 12 Wheat. 181; Russell v. Smith, 23 S.E. 5; Dirimple v. Bank, 65 N.W. 501; Chicago, etc. R. Co. v. Olney, 71 F. 95; Easley v. Easley, 18 B. Mon. 86. If different minds may honestly draw different conclusions from the facts, whether disputed or not, the case should be left to the jury. Stevens v. Pendleton, 85 Mich. 137, 83 Mich. 342; Knight v. Towles, 62 N.W. 964; Milne v Walker, 59 Ia. 186; Smith v. Coe, 55 N.Y. 678; Overton v. Mining Co., 131 Ind. 135; Sinter v Park Nat. Bank, 53 N.W. 205. Hawk's pretended lease to himself was unlawful as against public policy. Mechem on Agency, 457-458; Taylor's L'd. & Ten. § 142; Cundy v. Lindsay, L. R. 3 App. Cas. 465; Randolph v. Elliot, 34 N.J.L. 184; Gregory v. Wendell, 40 Mich. 443; Barnes v. Shoemaker, 112 Ind. 512; Winchester v. Howard, 97 Mass. 303.

Tilly & McLeod, for respondent.

The later and better rule as to the direction of verdicts is that a case should not be left to a jury unless there is evidence which will warrant a verdict in favor of the party producing it. Or that if a different verdict was rendered it would be set aside as contrary to the evidence. 2 Thompson Trials, 2247-2248; Farmers' Bank v. Duvall, 7 Gill. & J. (Md.) 78; Davis v. Davis, 7 Har. & J. (Md.) 36; Cole v. Helb, 7 Gill. & J. (Md.) 41; Giermaun v. Ry Co., 42 Minn. 5; Rich v. Rich, 16 Wend. 663; Goodrich v. Walker, 1 Johns. Cas. 251; Rudd v. Davis, 3 Hill 287, 7 Hill 529; McDonald v. Walter, 40 N.Y. 551; Dwight v. Ins. Co., 103 N.Y. 341; Didge v. Gaylord, 53 Ind. 365; Peet v. Ins. Co., 1 S.D. 262; Matthis v. Matthis, 3 Jones (N. C.) 132; Sutton v. Madre, 2 Jones (N. C.) 320; State v. Vinson, 63 N.C. 355; Holland v. Kindregan, 155 Pa. 156; Patterson v. Dushane, 115 Pa. 334; Howard Exp. Co. v. Nile, 64 Pa. 201; Bagley v. Bowe, 105 N.Y. 171; Boulger v. Rosa, 119 N.Y. 459; Jones v. Ry. Co., 49 Wis. 352; O'Brien v. Ry. Co., 66 N.W. 363; Larson v. Eau Claire, 65 N.W. 731.

OPINION

YOUNG, J.

One question only is presented by defendant's appeal in this case, and that relates to the correctness of the order of the trial court in granting plaintiff's motion for a directed verdict at the close of the case. The plaintiff seeks to recover the value of a quantity of grain which he alleges was converted by the defendant on September 15, 1896. The grounds upon which the right of recovery is based are set out at length in the complaint, in two distinct causes of action. The first alleges his ownership of the grain in question. The second sets up the lien of a chattel mortgage executed by one J. M. Keep, and default therein entitling him to possession. The answer meets the allegations of ownership contained in the first cause of action by an explicit denial, and as to the second cause of action, based upon the chattel mortgage, alleges that Keep, the mortgagor, had no right or interest in this grain which he could mortgage. So far as the facts contained in the record are material to a review of the single question presented here, they are these:

For several years just prior to 1896, the year in which this grain was grown, J. M. Keep had been a tenant of the Maryland Land Company, farming for it upon shares certain lands owned by it in Cass county. Under the terms of his several leases with them, which were made yearly, he retained three-fourths of the grain, and delivered the remaining fourth at the elevator at Buffalo to his lessor. During this time one W. J. Hawk, the husband of defendant, appears to have attended to receiving the grain at Buffalo for the lessor, and also to have attended to certain matters connected with the actual leasing, but to what extent is not clear; neither is it material in this case, for it is shown that the lease under which the grain in controversy was grown was made under the express direction of the lessor. On December 6, 1895, Keep leased the land for the year 1896, by a written lease of that date, identical in terms with that of the preceding years. This lease was duly authorized by the owner of the land, and is the only lease it either authorized or ratified. It does not admit of dispute that Keep acted under this lease up to the time that he had about 100 acres of wheat seeded. Here, however, begins a series of transactions among the creditors of Keep which have supplied the material for this litigation. It appears that Keep was indebted to A. E. Clendening & Co., of which firm plaintiff was a member, upon a promissory note for $ 275, which was secured by a chattel mortgage upon the crop of 1896 and upon other property; also to the defendant in a large sum, also secured upon this grain and additional property, defendant's security being prior to that held by Clendening & Co. At and after this time Keep entered into separate contracts, and at different times, with plaintiff, who had become the owner of the note of Clendening & Co., and with defendant's husband, whereby, through them, he secured such advances of money, provision, and credit as was necessary for him to produce this crop, and without which it is evident he could not have done so. By these separate arrangements both Clendening and defendant's husband sought, not only to secure themselves for the advances made, but also to further secure Keep's original indebtedness, by obtaining his entire interest in the crops raised for this year. On May 14, 1896, Keep entered into a written contract with defendant's husband, by which he agreed to cultivate the lands in question for that year for the first party named in the contract, who was denominated therein as "W. J. Hawk, Agent," and to pay all expenses, and to deliver all the grain at the elevator at Buffalo in the name of the first party. This contract was signed, W. J. Hawk, Agent First Party," and "J. M. Keep, Second Party." For such services the first party was to pay to Keep the sum of $ 4 per acre.

There seems to have been an oral understanding that out of that sum there should be retained the amount of Hawk's advances as well as defendant's claim. Keep testifies that his cash contract contained certain conditions in reference to plowing which were to be changed before it was to go into effect, that they were not changed, and that he did not give up his original lease, but continued to act thereunder. With this, however, we are not concerned; for this contract is shown to be wholly between Keep and the defendant's husband, and it did not, therefore, abrogate or supersede the lease made by the owners of the land on December 6, 1895, which stands without contradiction in the record as the only lease or contract either authorized or ratified by them for this year, or of which they had any knowledge. It appears that Keep, as well as the plaintiff, when he examined the cash contract, considered it as the contract of the Maryland Land Company. That it was not is clear. This is shown by the testimony of John R. Bond and Samuel A. Reynolds, who had the immediate charge of this land for the owner. Both testified that the lease of December 6, 1895, was the only contract they had for the year 1896; that defendant's husband had no authority to make the later contract. Even Mr. Hawk does not claim that this cash contract, signed by him, "W. J. Hawk, Agent," in any way bound the owners of the land, or that it was a new contract, superseding the...