Dahl v. Winter-Truesdell-Diercks Company, a Foreign Corporation
| Decision Date | 15 June 1931 |
| Docket Number | 5911 |
| Citation | 237 N.W. 202,61 N.D. 84 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Williams County Moellring, J.
Reversed.
Libby & Harris, for appellant.
In trover, as in ejectment, the plaintiff must recover on the strength of his own title without regard to the weakness of his adversary. 26 R.C.L. 1131.
"No action for conversion can be maintained unless the plaintiff shows a general or special ownership in the property converted, and possession or a legal right to immediate possession, at the time of the conversion." Barton v. Dunning, 6 Blackf. 209; Grady v. Newby, 6 Blackf. 442; Dungan v. Insurance Co. 38 Md. 242; Owens v. Weedman, 82 Ill. 409; Fulton v Fulton, 48 Barb. 581; Danley v. Rector, 10 Ark 211; Parker v. First Nat. Bank, 3 N.D. 87, 54 N.W. 313. See also Ribble v. Lawrence, 17 N.W. 60; Lock v. Shreck, 75 N.W. 970; Clendening v. Hawk, 8 N.D. 419, 79 N.W. 879.
"One suing for conversion must show a possessory right in the property, and where he has no right or title, he cannot recover." Munier v. Zachery (Iowa) 114 N.W. 36. See Simmons v. McConville, 19 N.D. 787, 125 N.W. 304.
"The written consent of the person holding the receipt or voucher is necessary in order to authorize the person giving it to ship the property beyond his control." State v. Stevenson, 52 Iowa 703, 3 N.W. 743; State v. Regier, 59 Minn. 151, 60 N.W. 1087; Sykes v. People, 127 Ill. 117, 2 L.R.A. 461, 19 N.E. 705; State v. Henzell, 27 L.R.A.(N.S.) 159, 107 P. 57; McReynolds v. People, 230 Ill. 823; Miller v. State, 144 Ind. 401, 43 N.E. 440.
"Where an illegal or immoral contract is executed, the parties will be left as they were found and neither can predicate any rights thereon." Peters v. Davenport (Iowa) 74 N.W. 6.
"An agreement express or implied by a public officer to serve for less than the compensation fixed by law, is contrary to public policy, and void." Abbott v. Hayes Co. (Neb.) 111 N.W. 780; Gallaher v. Lincoln (Neb.) 88 N.W. 505.
"A contract is void if it contemplates acts that are illegal or contrary to public policy." Detloff v. Hammond-Standish Co. 161 N.W. 949; Dodson v. McCurnin (Iowa) 160 N.W. 924; Jones v. American Home Finding Asso. (Iowa) 182 N.W. 191.
"A court will not directly enforce a contract or recognize it by awarding damages for its breach if it is contrary to public policy, but will leave the parties where it finds them." Seitz v. Michel (Minn.) 181 N.W. 102; Iowa Electric Co. v. Winthrop (Iowa) 138 N.W. 14; Vercellini v. United States I. Realty Co. (Minn.) 196 N.W. 672; Janzen v. Crum, 50 N.D. 544, 197 N.W. 137; Erickson v. North Dakota State Fair Asso. 54 N.D. 830, 211 N.W. 597.
"A general demurrer tests the substantive legal rights of parties upon admitted facts, including proper and reasonable inferences of law and fact which can be drawn from facts which are pleaded." 1 Bancroft, Code Pl. 313.
The constitutionality of a statute may be raised by demurrer. 6 R.C.L. 97.
Rights under the statute may be tested by demurrer so far as their legal status is concerned. 21 R.C.L. 505.
Ivan V. Metzger, for respondent.
"Whether a contract is against public policy is a question of law for the court to determine from all the circumstances of each case." 13 C.J. 427.
". . . It is immaterial, as far as the effect of the illegality is concerned whether the object of the agreement is forbidden by the common law or by statute, or, generally speaking, whether the thing forbidden is malum in se or merely malum prohibitum. . . ." 13 C.J. 412. See also State ex rel. Hermann v. Farmers Elevator Co. 59 N.D. 679, 231 N.W. 725.
This is an appeal from an order overruling a general demurrer to the complaint. The substantial allegations of the complaint are to the effect that between the dates of January 8, 1923, and October 22, 1924, the defendant was operating a grain elevator in the town of Zahl, in Williams County, North Dakota; that during this period one Ole Anderson delivered 58 bushels and 40 pounds of No. 1 wheat to the defendant, the latter issuing a storage ticket therefor; and that on certain dates thereafter, which dates are alleged, he delivered certain other quantities of wheat, likewise alleged, to the defendant, receiving storage tickets therefor, all of which storage tickets are described by date and number; that in March, 1923, Anderson indorsed and delivered to the plaintiff these storage tickets; that on October 21 and 22, 1924, Charles Kittelson delivered to the defendant, to be stored in its elevator at Zahl, 498 bushels and 117 bushels, respectively, No. 1 wheat, for which the defendant issued to Kittelson storage tickets, which are likewise described, and that thereafter in the month of November, 1924, Kittelson indorsed and delivered such storage tickets to the plaintiff; that one Ole Severtson was employed as the agent of the defendant at Zahl, North Dakota; that in the fore part of August, 1925, the plaintiff informed Ole Severtson that he desired to sell the grain represented by the storage tickets and informed Severtson that he had lost the storage tickets therefor; that in truth and in fact the plaintiff had lost the storage tickets, that thereafter Severtson informed the plaintiff that it would be necessary for the plaintiff to supply the defendant company with a surety bond in the sum of $ 2,000, indemnifying the defendant against any loss or damage in the event of any demand upon the company by any one else in possession of said tickets; that the plaintiff furnished said surety bond as required and such bond was accepted and approved by the defendant company, the latter notifying the plaintiff of its approval on September 23, 1925, but that defendant company has failed and neglected to deliver to the plaintiff any duplicate storage tickets for said grain. It is alleged "that thereafter and on August 26th, A.D. 1925, this plaintiff demanded of the defendant that it purchase the said grain from him at the price of $ 1.49 a bushel or that it do deliver to him the said grain at Zahl, North Dakota, and that the said defendant company did thereafter neglect and refuse to either pay this plaintiff for the said grain or to deliver the same to him and that it did thereby convert the same to its own use and benefit and that, under date of September 23, A.D. 1925, it did then inform this plaintiff that it would not deliver said grain to him at Zahl but would deliver it at a further and more distant point, to-wit at Appam, North Dakota, and that it did thereby further convert the said grain to its own use and benefit and the whole thereof; that, again and under date of September 27, A.D. 1925, this plaintiff did demand of the defendant that it either pay him $ 1.49 a bushel for the said grain or that it do deliver the said grain back to him at Zahl, North Dakota, and that the said defendant company did flatly refuse to either deliver the said grain back to him at Zahl, North Dakota, or pay him therefor and that it did thereby further convert the said grain to its own use and benefit." It is alleged that the price of No. 1 wheat on August 14, 1925, at Zahl, North Dakota, was $ 1.49 a bushel and that it varied from $ 1.49 to $ 1.30 a bushel during the month of August in the year 1925; that during the month of January, 1926, the plaintiff went to Minneapolis and on or about the 4th day of January called at the office of the defendant company in Minneapolis and demanded of the said company "that it do pay to him the market price of the said grade of grain at Zahl, North Dakota, and that on said day in Zahl, North Dakota, the market price of No. 1 dark northern wheat was the sum of $ 1.65 per bushel but that the defendant company then and there offered to pay this plaintiff the sum of $ 1.51 a bushel for said grade and that this plaintiff refused to accept the same."
It is then alleged that by virtue of the premises the defendant has taken and converted to its own use and benefit the wheat represented by said lost storage tickets; that the plaintiff elects to claim as the price therefor the sum of $ 1.65 per bushel, that being the market price of said grain on or about January 4, 1926; that the plaintiff has been damaged in the sum of $ 1,302.67. Judgment is demanded in this sum with interest from January 4, 1926.
It is not contended that the complaint states a cause of action for damages on account of the failure of the defendant to issue duplicate storage tickets upon the furnishing of the bond alleged to have been given by the plaintiff. It is not alleged that the plaintiff had demanded duplicate storage tickets and from the allegations in the complaint it appears that at the time the bond was furnished the plaintiff contemplated selling the wheat. While the terms of the indemnity bond are not alleged, it may readily be inferred from what is alleged that the bond was to indemnify the defendant in the event it purchased the grain and claim should subsequently be made by another holder of the outstanding warehouse receipts. The plaintiff alleges that it was in the fore part of August, 1925, that he communicated to the agent of the defendant his desire to sell the wheat and also informed him that he had lost the storage tickets and was in turn informed that it would be necessary for him to furnish a satisfactory indemnity bond. He alleges the furnishing of the bond and its acceptance and approval by the defendant and that he was notified of the acceptance and approval under date of September 23, 1925. Neither the date of the furnishing of the bond nor the date of the...
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