Crisp v. State Bank of Rolla, a Corporation

• Decision Date: 30 November 1915
• Court: North Dakota Supreme Court

155 N.W. 78

32 N.D. 263

MARY J. CRISP v. STATE BANK OF ROLLA, a Corporation

Supreme Court of North Dakota

November 30, 1915

Appeal from the District Court of Rolette County, Buttz, J. Action of trover for the conversion of a check. Judgment for plaintiff. Defendant appeals.

Reversed.

Judgment of the District Court reversed and a new trial ordered.

H. E Plymot and Cowan & Adamson and H. S. Blood, for appellant.

Neither possession or right to possession at time of alleged conversion is shown in plaintiff, nor is her ownership established. Nor is there shown a wrongful appropriation of the check by the bank. Parker v. First Nat. Bank, 3 N.D. 87, 54 N.W. 313; Simmons v. McConville, 19 N.D 787, 125 N.W. 304; Hodge v. Eastern R. Co. 70 Minn 193, 72 N.W. 1074; Ring v. Neale, 114 Mass. 111, 19 Am. Rep. 316; Glass v. Basin & B. S. Min. Co. 31 Mont. 21, 77 P. 302.

The check would be effective upon delivery. No delivery is shown. Marvin v. M'Cullum, 20 Johns. 228; Eastman v. Shaw, 65 N.Y. 528; King v. Fleming, 72 Ill. 21, 22 Am. Rep. 131; Woodford v. Dorwin, 3 Vt. 82, 21 Am. Dec. 573; Talbot v. Bank of Rochester, 1 Hill, 295; Garthwaite v. Bank of Tulare, 134 Cal. 237, 66 P. 326; Buehler v. Galt, 35 Ill.App. 225; Wright v. Ellis, 1 Handy (Ohio) 546.

Even if the check had been delivered to plaintiff she could not maintain an action against the bank to recover money paid out on her forged indorsement. Morgan v. Bank of State, 11 N.Y. 405; First Nat. Bank v. Whitman, 94 U.S. 347, 24 L. ed. 231.

Where on the trial inadmissible evidence is received over objection, and thereafter, and at the close of the case, is withdrawn, and the trial court admonishes the jury to disregard it entirely, the error of admitting it is not cured by such admonition or instruction. Where such evidence is impressive in its nature, the harm in admitting it cannot be cured or removed by any instruction from the court. Its effect still remains. Maxted v. Fowler, 94 Mich. 106, 53 N.W. 921; Boydan v. Haberstumpf, 129 Mich. 137, 88 N.W. 386; Nelson v. Spears, 16 Mont. 351, 40 P. 786; State Bank v. Dutton, 11 Wis. 371; Remington v. Bailey, 13 Wis. 336; Hanson v. Johnson, 141 Wis. 550, 124 N.W. 506; Armour & Co. v. Kollmeyer, 16 L.R.A.(N.S.) 1110, 88 C. C. A. 242, 161 F. 78; Juergens v. Thom, 39 Minn. 458, 40 N.W. 559; Whittaker v. Voorhees, 38 Kan. 71, 15 P. 874; Dykes v. Wyman, 67 Mich. 236, 34 N.W. 561.

The law is that delivery of commercial paper, either active or constructive, is necessary to its completion. Jones v. Deyer, 16 Ala. 221; Gordon v. Adams, 127 Ill. 223, 19 N.E. 557; Palmer v. Poor, 121 Ind. 135, 6 L.R.A. 469, 22 N.E. 984.

Middaugh, Cuthbert, Smythe, & Hunt, for respondent.

Where a party proceeds upon a certain well-defined theory at the trial, he cannot abandon it and adopt a new theory on his motion for a new trial or on appeal. The theory adopted and pursued at the trial must control throughout. Marshall v. Andrews, 8 N.D. 364, 79 N.W. 851; Paulson v. Ward, 4 N.D. 100, 58 N.W. 792; Wright v. Sherman, 3 S.D. 290, 17 L.R.A. 792, 52 N.W. 1093; Loomis v. LeCocq, 12 S.D. 325, 81 N.W. 633; Bidgood v. Monarch Elevator Co. 9 N.D. 632, 81 Am. St. Rep. 604, 84 N.W. 561; Valiquette v. Clark Bros. Coal Min. Co. 83 Vt. 538, 34 L.R.A.(N.S.) 440, 138 Am. St. Rep. 1104, 77 A. 869; William Deering & Co. v. Russell, 5 N.D. 319, 65 N.W. 691; 3 Cyc. 243; Diggs v. Way, 22 Ind.App. 617, 51 N.E. 429, 54 N.E. 412; Carroll v. Drury, 170 Ill. 571, 49 N.E. 311; Snyder v. Snyder, 142 Ill. 60, 31 N.E. 303; Middlekauff v. Zigler, 10 Kan.App. 274, 62 P. 729; Flaherty v. Miner, 123 N.Y. 382, 25 N.E. 418; Luckie v. Schneider, -- Tex. Civ. App. --, 57 S.W. 690; 2 Cyc. 670.

Rulings by the trial court on the receiving of evidence will not be received by the supreme court unless exceptions are duly taken. Waterhouse v. Jos. Schlitz Brewing Co. 16 S.D. 592, 94 N.W. 587; State v. Harbour, 27 S.D. 42, 129 N.W. 565; Redwater Land & Canal Co. v. Jones, 27 S.D. 194, 130 N.W. 85; F. Mayer Boot & Shoe Co. v. Ferguson, 19 N.D. 496, 126 N.W. 110.

Questions not raised in the court below cannot be presented in the supreme court, especially where an attempt appears to change the theory. Marshall v. Andrews, 8 N.D. 364, 79 N.W. 851; Peteler Portable R. Mfg. Co. v. Northwestern Adamant Mfg. Co. 60 Minn. 127, 61 N.W. 1024; Broughel v. Southern New England Teleph. Co. 72 Conn. 617, 49 L.R.A. 404, 45 A. 435.

BRUCE, J. CHRISTIANSON, J. (dissenting).

OPINION

Statement of facts by

BRUCE J.

This is an action for the conversion by the defendant of a certain bank check which was drawn on the Stockman's National Bank of Montana, the complaint alleging that "on or about the 2d day of April, 1905, the plaintiff was the owner and lawfully entitled to the possession 'thereof,' and that thereafter and on or about the 2d day of May, the defendant wrongfully and unlawfully obtained possession thereof and thereupon wrongfully and unlawfully appropriated and converted the same to its own use." The answer denied generally all of the allegations of the complaint excepting such as were admitted and qualified, its qualification being that "on or about the 22d day of April, 1905, it cashed a certain check for the plaintiff, which said certain check was referred to in plaintiff's complaint and described therein in words and figures, but the defendant alleges that said bank check was cashed for the plaintiff by the defendant at the plaintiff's special instance and request, and the money paid to the plaintiff and the plaintiff's husband, and that said bank check was indorsed and made payable to the defendant as a receipt for said money, at the plaintiff's special instance and request, by indorsement made thereon by the plaintiff's husband at the plaintiff's special instance and request, and by her authority," etc. To this answer the plaintiff replied, denying the allegation of the payment by authority, but admitting and adding "that the said Charles Crisp (the husband) indorsed said check, but such indorsement was wholly without authority from the plaintiff, and without her knowledge and consent, and without any express custom on plaintiff's part."

The plaintiff introduced evidence tending to show that the check was sent her by the administrator of her former husband's estate, but without direct authorization, and that its sending was not known to her until a year after it had been cashed by the defendant bank, and which bank was an intermediary merely, the check being drawn on the Stockman's National Bank of Montana. She claims, and the evidence tends to show, that her present husband intercepted the letter and indorsed her name thereon without her authority, and had the same cashed by the defendant bank, and that she has never received any of the proceeds thereof. Evidence, on the other hand, was introduced by the defendant bank concerning a visit by an officer of such bank to the plaintiff before the check was paid, and of her authorization of such payment. This testimony, however, was emphatically denied by the plaintiff.

The case was tried upon the theory that the only issue in the case was whether or not the payment to and indorsement by the husband was authorized by the wife. No exceptions appear to have been taken to the instructions, nor are they, with one exception, incorporated in the record, which is before us. From a judgment in favor of the plaintiff the defendant appeals.

BRUCE, J. (after stating the facts as above). The principal ground for a reversal which is urged by the defendant in this case, and which was apparently urged upon the motion for a new trial, is that the evidence does not show that the check came into the possession of the plaintiff before the time of the alleged conversion, and that therefore the action of trover will not lie. It is contended that, no delivery having been made, the check at such time was the property of the maker, and not of plaintiff, and that the plaintiff, therefore, has no ground of complaint, as the liability of such maker to her is still existing, the debt never having been paid. This objection, however, comes too late. The case was twice tried, and the point does not appear to have been raised until the motion for a new trial was made in the second action.

The delivery of the check to the plaintiff or to her agent, and her right to the possession thereof at the time of its payment by the defendant bank, is admitted by the answer; for, although the answer denies the allegations of the complaint, "except as herein expressly admitted, qualified, or explained," it expressly alleges that the check "was cashed for the plaintiff at the plaintiff's special instance and request, and the money paid to the plaintiff or to the plaintiff's husband, and that said check was indorsed and made payable to the defendant as a receipt for said money at plaintiff's special instance and request, with indorsement made thereon by plaintiff's husband at plaintiff's special instance and request and by her authority, and that the defendant cashed said check by virtue of the authority given by the plaintiff to the plaintiff's husband to indorse said check, and to receive the money thereon for her use and benefit, and that the defendant cashed said check for the plaintiff as aforesaid in the regular course of business and under an express custom on the part of the plaintiff giving her husband authority to generally cash and indorse her checks for her and to receive the money thereon."

The question of ownership of the check, and the right to the possession thereof at the time of the alleged conversion, was and is therefore expressly eliminated from the case, and the only question at issue, and in fact the only question that was tried in the district court,...