Cochrane v. National Elevator Co.

• Decision Date: 27 May 1910
• Citation: 127 N.W. 725,20 N.D. 169
• Court: North Dakota Supreme Court

127 N.W. 725

20 N.D. 169

ROBERT COCHRANE v. NATIONAL ELEVATOR COMPANY

Supreme Court of North Dakota

May 27, 1910

Rehearing denied August 31, 1910.

Appeal from District Court, Ramsey county; John F. Cowan, J.

Action by Robert Cochrane against the National Elevator Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Affirmed.

Van Derlip & Lum (Guy C. H. Corliss, of counsel), for appellant.

Newspaper reports of market prices are not competent. Whelan v Lynch, 60 N.Y. 469, 19 Am. Rep. 202; Nelson, Morris & Co. v. Columbian Iron Works & Dry Dock Co. 76 Md. 354 17 L.R.A. 851, 25 A. 417; Texas & P. R. Co. v. Slator (Tex Civ. App.) 102 S.W. 156.

Appellant's habit or system of doing business may be shown. Adams v. Coulliard, 102 Mass. 167; Wigmore, Ev. PP 92, 93, 375, et seq.; 11 Am. & Eng. Enc. Law, p. 512.

Appellant should have been allowed to show its agent's instructions, and evidence of business with him contrary thereto should not have been received. Columbia Mill Co. v. National Bank, 52 Minn. 229, 53 N.W. 1061; 1 Am. & Eng. Enc. Law, pp. 965, 989, 999, 1002, and notes; Mechanics' Bank v. New York & N.H. R. Co. 13 N.Y. 632; Edwards v. Dooley, 120 N.Y. 540, 24 N.E. 829; Jackson v. Mutual Ben. L. Ins. Co. 79 Minn. 46, 81 N.W. 545, 82 N.W. 366; Brown v. Massachusetts Mut. L. Ins. Co. 59 N.H. 298, 47 Am. Rep. 205; Murray v. C. N. Nelson Lumber Co. 143 Mass. 250, 9 N.E. 634; Eckart v. Roehm, 43 Minn. 271, 45 N.W. 443; Mechem, Agency, § 276.

Local custom must be so general and long existing as to warrant the presumption that parties dealt with reference to it. The Paragon, 1 Ware, 322, F. Cas. No. 10,708; 2 Jones, Ev. 469, et seq.; 29 Am. & Eng. Enc. Law, pp. 412, 414; Porter v. Hills, 114 Mass. 110.

For purpose of comparing handwriting, an admittedly genuine signature should be received. University of Illinois v. Spalding, 62 L.R.A. 817, note; Wigmore, Ev. §§ 1994, 2001, et seq. 2016; Morrison v. Porter, 35 Minn. 425, 59 Am. Rep. 331, 29 N.W. 54; Mississippi Lumber & Coal Co. v. Kelly, 19 S.D. 577, 104 N.W. 265, 9 A. & E. Ann. Cas. 449; Dietz v. Fourth Nat. Bank, 69 Mich. 287, 37 N.W. 220; Cannon v. Sweet (Tex. Civ. App.) 28 S.W. 718; Moore v. Palmer, 14 Wash. 134, 44 P. 142.

Burke, Middaugh, & Cuthbert, for respondent.

Witness may testify from inquiries made, as to market values. 2 Elliott, Ev. § 1302; Dooley v. Gladiator Consol. Gold Mines & Mill. Co. 134 Iowa 468, 109 N.W. 864, 13 A. & E. Ann. Cas. 297; 26 Cyc. Law & Proc. p. 819; Murray v. Stanton, 99 Mass. 345; Humphreys v. Minnesota Clay Co. 94 Minn. 469, 103 N.W. 338.

An agent binds his principal when he acts within his apparent and ostensible authority. Nebraska Bridge Supply & Lumber Co. v. Conway, 127 Iowa 237, 103 N.W. 122; Kilborn v. Prudential Ins. Co. 99 Minn. 176, 108 N.W. 861; Farmer v. Bank of Graettinger, 130 Iowa 469, 107 N.W. 170; Meyer v. Doherty, 133 Wis. 398, 13 L.R.A. (N.S.) 249, 126 Am. St. Rep. 967, 113 N.W. 667; Merz v. Croxen, 102 Minn. 69, 112 N.W. 890; Herrick v. Humphrey Hardware Co. 73 Neb. 809, 119 Am. St. Rep. 917, 103 N.W. 687, 11 A. & E. Ann. Cas. 201; Oleson v. Merrill, 20 Wis. 463, 91 Am. Dec. 428, Rev. Codes 1905, §§ 5769-5771, 5784.

If property comes into one's hands without a valid contract and he converts it, he is liable. Cutter v. Fanning, 2 Iowa 580; Wildey v. Cox, 25 Mich. 116; 26 Am. & Eng. Enc. Law, p. 724; Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 370; Dwight v. Brewster, 1 Pick. 50, 11 Am. Dec. 137.

Where a custom is so general and well settled that parties are presumed to have dealt with reference to it, it is a part of the contract. 1 Elliott, Ev. §§ 172, 607; 1 Greenl. Ev. § 14 J.

A paper otherwise irrelevant cannot be admitted for the purpose of comparison of handwriting. Smyth v. Caswell, 67 Tex. 567, 4 S.W. 848; Kennedy v. Upshaw, 64 Tex. 411; Cook v. First Nat. Bank (Tex. Civ. App.) 33 S.W. 998; Merritt v. Campbell, 79 N.Y. 625; Hynes v. McDermott, 82 N.Y. 51, 37 Am. Rep. 538; United States v. Jones, 10 F. 469; Randolph v. Loughlin, 48 N.Y. 456; People v. Parker, 67 Mich. 222, 11 Am. St. Rep. 578, 34 N.W. 720; Vinton v. Peck, 14 Mich. 287; First Nat. Bank v. Robert, 41 Mich. 709, 3 N.W. 199; Weidman v. Symes, 116 Mich. 619, 74 N.W. 1008.

OPINION

FISK, J.

Plaintiff sues to recover for the alleged conversion by defendant of 84 bushels of flax, 265 bushels of No. 1 hard wheat, and 307 bushels of Durham wheat which he claims to have delivered to defendant at its elevator at Grand Harbor, this state, between the 7th and the 11th days of July, 1907. The defense amounts to a general denial with a counterclaim for a small sum for elevator charges for handling the grain. The trial resulted in a verdict in plaintiff's favor for $ 615.80. A motion for a new trial was made and denied, and judgment entered on such verdict. The appeal is both from the final judgment, and from the order denying the new trial.

The assignments of error number 65, but they are grouped and discussed in the brief of appellant's counsel under eight subdivisions or points. These will be noticed in the order presented.

1. Error is alleged in the admission of certain evidence as to the quantity of grain delivered by respondent to appellant, and the sufficiency of the evidence to show the quantity of grain, if any, so delivered is challenged. We discover no merit in either contention. Plaintiff was not restricted to the contents of defendant's books in proving the delivery of the grain. He testified positively that he knew the amount of grain that he delivered at defendant's elevator, that he delivered it personally, and saw it weighed, and he detailed the exact number of bushels of each kind of grain so delivered, which testimony corresponds exactly with the allegations of the complaint. That such evidence was both competent and amply sufficient to support the verdict we entertain no doubt.

2. It is next contended that the evidence as to the value of the grain was improperly received, and that the evidence to show the market price thereof is insufficient. The evidence objected to is in brief as follows: Plaintiff testified that he knew the highest market prices of grain at Grand Harbor between September 25, 1907, and the date of the trial, and he details such prices at $ 1.06 1/2 for No. 1 hard wheat, 88 cents for No. 1 Durham wheat, and $ 1.24 for flax. He says the highest market price was in October, but cannot fix the exact date. His knowledge regarding prices is based on inquiries made at Grand Harbor and other places in that vicinity, also from general information obtained from the Minneapolis Journal and other newspapers. He testified that he watched the markets generally and read the market reports every day. He also testified: "I have kept track of the price from time to time--inquired the price and read the papers and seen the market reports. I have made inquiries at different places, at Grand Harbor and Devils Lake. I am interested in the market, being a considerable grower of grain. . . . I had 10,000 bushels of wheat, 1,000 bushels of flax, 4,000 bushels of barley, and 2,200 or 2,300 bushels of oats. I marketed the major part of that grain at Grand Harbor, and I was interested in the price of grain because I had grain to sell. . . . I have inquired at the elevators the highest prices between October and the present time, and read the Journal, and found what month it was the highest and what the highest price was." Witness Emigh was shown qualified to testify as to prices at Grand Harbor in the month of October, and he fully corroborates plaintiff as to the highest price of wheat during that month. Witness Ness, agent for the Farmers' Grain Company at Grand Harbor during the fall of 1907, fully corroborates plaintiff's testimony as to prices at that time. There can be no doubt that this witness was shown to be fully qualified to testify upon the subject of prices.

It is a significant fact that defendant nowhere attempted to show that the prices were other than as testified to by plaintiff and his witnesses, although it no doubt had in its possession at all times definite record information upon the subject. While it is true plaintiff had the burden of establishing such market price, and it was in no way incumbent on defendant to furnish evidence upon the question, the fact that no attempt was made by defendant to refute plaintiff's testimony is a strong circumstance tending to corroborate the accuracy thereof. That the evidence of plaintiff and his witnesses upon the question of the market prices of the grain was both competent and sufficient is, we think, entirely clear.

3. It is next contended that "appellant should have been permitted to show its system and manner of transacting business at Grand Harbor, and that it had actually paid for the grain claimed to have been delivered to it by respondent." We are unable to discover any merit to such contention. The rulings complained of relative to the admission of evidence regarding the system and manner of transacting business in defendant's elevator at Grand Harbor, so far as they were adverse to appellant, were not excepted to, and there is nothing in the record, so far as we are able to discover, to justify appellant's assumption that it was not permitted to show, if it could, that it had actually paid plaintiff for this grain. In fact, the exact reverse is true, but no competent evidence was offered to prove such payment, and there is not a scintilla of evidence of such payment in the record.

4. Appellant complains of the ruling of the court below in excluding offered testimony as to instructions given by defendant to its agent at Grand Harbor; and it also contends that certain evidence was erroneously received...