Ellis v. Nelson

• Decision Date: 16 April 1917
• Citation: 36 N.D. 300,162 N.W. 554
• Parties: ELLIS v. NELSON.
• Court: North Dakota Supreme Court

36 N.D. 300

162 N.W. 554

ELLIS

v.NELSON.

Supreme Court of North Dakota.

April 16, 1917.

Syllabus by the Court.

Where one, the landlord, had leased his farm to another, the tenant, for a term of five years, wherein the landlord was to furnish all the seed, and each to have half of the grain raised upon such premises, and the landlord had a lien on the tenant's share of such grain by reason of a provision in the lease, and the landlord permits the tenant during each of said years to haul off and sell all of the tenant's share of such grain and a part of the landlord's share also, and the landlord during all of such time until after the expiration of the lease gives no notice to the person purchasing such grain from such tenant that the landlord claims a lien thereon, initiates no judicial proceedings of any kind or character to indicate his dissatisfaction with the action of the tenant, serves no notice on the purchaser, the elevator company, or person who in good faith and in the ordinary course of business purchases such grain and parts with value that he is in any manner dissatisfied, and in no manner makes any complaint concerning the action of his tenant in the selling of such grain, but during all of such time remains silent, manifesting no dissatisfaction, and apparently acquiescing in the acts of his tenant, and the testimony concerning all such transactions and acts of the tenant is submitted to the jury, held, that there was sufficient evidence of agency to submit the question of agency to the jury, and the jury having found that the tenant was the agent of the landlord for the purpose of selling and disposing of the grain, which he did sell and dispose of, it is conclusive, and will not be disturbed on appeal.

Where a lease for a term of years contains a provision that the title and possession of all grains raised upon such premises during the term of such lease shall remain in the landlord until a division thereof, held, that such a provision in the lease creates a lien in the nature of a chattel mortgage in favor of the landlord on the tenant's share of the crop for the protection and security of advances and indebtedness, as provided by the laws under consideration.

Appeal from District Court, Barnes County; J. A. Coffey, Judge.

Action by S. P. Ellis against E. B. Nelson and E. B. Nelson, doing business as Nelson's Independent Elevator. Judgment for defendant, and plaintiff appeals. Affirmed.Lee Combs and L. S. B. Ritchie, both of Valley City, for appellant. Winterer & Ritchie, of Valley City, for appellee.

GRACE, J.

This is an appeal from the judgment of the district court of Barnes county in favor of the defendant and respondent and against the plaintiff.

The complaint in the case is one in conversion. The plaintiff in the case is the owner of a large tract of land which he had leased for a term of years to one Henry Swartz as tenant, who during the year 1914 raised upon such land a large quantity of wheat which was delivered and hauled by said Swartz to E. B. Nelson, doing business at Oriska, N. D., as Nelson's Independent Elevator. The amount of wheat so delivered to such elevator was 3,315 bushels according to the complaint of the plaintiff, title to which is claimed by the plaintiff.

The complaint sets forth a demand of the plaintiff of the defendant for the value of such grain, which is alleged to be $4,640.50. The answer of the defendant, after denying certain paragraphs of the complaint, alleges the facts to be: That for a period of five years prior to the 13th day of November, 1915, commencing on the 13th day of November, 1910, and continually during said period of five years, the said plaintiff herein, together with one Henry Swartz, were associated together in the operation, conduct, and farming of a certain farm situated in Weimer township, Barnes county, N. D. Said Henry Swartz had the sole and exclusive charge and conduct of the farming operations conducted upon said farm by the said plaintiff and the said Henry Swartz, and did have sole and exclusive charge of the hauling and selling of all grains and produce sown, grown, harvested, raised, and produced upon said farm during the said period. That during each of the several farming years included in the said period, to wit, farming years 1911, 1912, 1913, 1914, and 1915, the said plaintiff herein did instruct the public warehousemen doing business in the village of Oriska, county of Barnes, and state of North Dakota, that the said Henry Swartz had sole and exclusive charge of the marketing and selling of all grains raised and produced on said farm during said several years, and that during said several years and each of them, and with the full knowledge and consent and concurrence of the plaintiff herein, the said Henry Swartz did market the grains sown, grown, and produced upon said farm, other than such as was necessary to be retained for seed, and did sell the same to the various warehousemen doing business at Oriska, Barnes county, N. D. And during the year 1914 the said Henry Swartz did market the grains produced upon said premises in the year 1914, and did haul and sell the same to the above-named defendant in part, and the remainder of that part marketed was hauled and sold to the Acme Elevator Company, at Oriska, Barnes county, N. D. And further alleging that there was unsold and retained upon the farm about 1,200 bushels of wheat. That that part of the grain so delivered to the defendant was sold by Swartz with the knowledge and consent of the plaintiff, and that the remainder of said grain so hauled was sold by the plaintiff. Defendant further alleges that he had no knowledge of the proportionate parts of said grains belonging to either the plaintiff or Swartz, and alleges that he had received notice from the plaintiff that the matter of marketing and selling of said grain was one in which he (the plaintiff) would not interfere, but was in the sole and exclusive charge of said Henry Swartz.

The complaint then sets forth the number of gross and net bushels delivered to the defendant elevator, and the defendant further alleges that it was the custom and practice adopted by the said plaintiff and the said Henry Swartz in the matter of the conduct of the farming operations upon said farm during the farming years mentioned that said Henry Swartz was upon the hauling of the grain to sell a portion of said grain, and alleged that it was agreed between Swartz and the plaintiff that upon the sale of such grain the said Swartz was to account to the plaintiff for the proceeds.

The defendant further alleges that he at no time received the said grain, and converted the same to his own use, but on the contrary disposed of the same in the manner by custom established and both acts and words of the plaintiff herein consented to, and not otherwise. Defendant further alleges that prior to the time of the selling of said grain and the hauling thereof, a division of the grain had been had between Swartz and the plaintiff, each receiving his portion, and Swartz did not sell or receive payment for more than his share of said grain. The defendant, further answering, alleges that the plaintiff herein had constituted the said Henry Swartz his agent during the period of five years immediately preceding this action, to wit:

“Commencing on the 13th of November, 1910, for the purpose of marketing and selling said grain and receiving the purchase price therefor, and that in pursuance of said agency and not otherwise, the said Henry Swartz marketed and sold the grain, or a large portion thereof, and did receive payment therefor, under full authority conferred upon him by the plaintiff herein, for the purpose of accounting to the plaintiff for such proceeds; and that during all the time said Henry Swartz marketed the said grain, sold the same, and received payment therefor, the said plaintiff herein was fully aware of his action and acts, and had full and complete knowledge thereof, and did consent thereto, and concur therein, and did permit the said Henry Swartz to make division of said grain and sell the same and receive payment therefor; and that during the year 1914 the said plaintiff at various times was present in the village of Oriska, county of Barnes, and state of North Dakota, at the time when the said grain was hauled and delivered to the defendant herein, and that at the time the same was sold by said Swartz.”

The defendant further alleges that the grain was hauled to his elevator in the due course of business, was purchased by him without notice of any claim on the part of the plaintiff, other than that the said plaintiff had an interest therein, but that the said Henry Swartz had full power and authority to deliver the same to this defendant, to sell the same, and to receive payment therefor; that if the said plaintiff had rescinded the authority of the said Swartz to sell said grain, he never at any time notified the defendant thereof, although he at all times had knowledge of the fact that the said Swartz was hauling the said grain to the defendant herein, and was selling the same to the defendant, and that the defendant was purchasing the same from the said Henry Swartz; that at the time the plaintiff last sold grain to the defendant, on the 2d day of February, 1915, the plaintiff well knew that all the grain that had been hauled into the said elevator from the said farm had been sold, and that he, the said plaintiff, had received payment for a portion thereof, and that the said plaintiff did not then, nor had he at any time prior thereto, notified the defendant that the said Henry Swartz had no authority to sell grain, or that the authority which had been prior thereto conferred upon the said Henry Swartz had been rescinded, or that the defendant had improperly purchased any of the said grain from the said Henry Swartz, and that the said defendant had no knowledge that the transaction was not regular and in...