Farmers' State Bank of Cathay v. Jeske

• Decision Date: 20 March 1924
• Citation: 197 N.W. 854,50 N.D. 813
• Parties: FARMERS' STATE BANK OF CATHAY v. JESKE et al.
• Court: North Dakota Supreme Court

50 N.D. 813

197 N.W. 854

FARMERS' STATE BANK OF CATHAY

v.JESKE et al.

Supreme Court of North Dakota.

Feb. 16, 1924.

Rehearing Denied March 20, 1924.

Syllabus by the Court.

Where testimony of a witness is based on personal knowledge of facts, and where such knowledge is not derived from the unsworn statements of others, such testimony is not hearsay.

Where plaintiff in a conversion action at the conclusion of the trial dismisses his action against some of several defendants for failure of proof, others joined as defendants are not released because of such dismissal, within the rule that the discharge of one joint tort-feasor for a consideration releases all.

Joint tort-feasors are jointly and severally liable; the plaintiff may sue them individually or jointly, at his election.

A new note is not payment of an old note, where both notes are evidence of the same debt, and where the original note is retained by the payee or holder as security for the new; a chattel mortgage taken to secure the payment of a debt evidenced by the original note remains as security for the payment of that debt.

Where evidence as to the date of the conversion has been admitted without objection, it is held, for reasons stated in the opinion, that the trial court properly permitted the plaintiff to amend the complaint by inserting an allegation as to the date when the conversion took place, such specific allegation having been omitted from the original complaint.

For reasons stated in the opinion, it is held, that the grain alleged to have been converted was sufficiently identified.

For reasons stated in the opinion, it is held, that the verdict of the jury as to market value of the grain is supported by sufficient competent evidence.

Under the facts and for reasons stated in the opinion, it is held, that the finding of the jury on the issue of demand is sufficiently supported by competent evidence.

A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed on appeal, unless such discretion has been manifestly abused.

Where the newly discovered evidence is not likely to result in a different verdict, it is not an abuse of discretion to deny a motion for a new trial on that ground.

The privilege of a witness to refuse to testify on the ground that his testimony may incriminate himself is personal, and must be claimed by the witness himself, and under the sanctity of an oath. The party against whom a witness is called to testify has no such interest in the matter that he may object if a witness voluntarily gives self-incriminating evidence. It is not the duty of the trial court, upon the interposition of such a party, to inform the witness of his privilege.

For reasons stated in the opinion, it is held, that the trial court did not err in refusing to exclude a promissory note upon the ground that it was not marked “renewed,” although renewal notes had been taken, as required by chapter 91 of the Session Laws of 1921.

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

Action by the Farmers' State Bank of Cathay against Emanuel Jeske and others. From a judgment for plaintiff, and from an order denying a motion in the alternative for a new trial or judgment notwithstanding the verdict, defendants appeal. Affirmed.

F. B. Lambert, of Minot, for appellants.

Adam Zuber, of Fessenden, and John O. Hanchett, of Valley City, for respondent.

JOHNSON, J.

This is an action for the alleged conversion of a quantity of wheat. The plaintiff, holder of a chattel mortgage upon the grain, brought suit in the district court of Wells county against the defendant grain company and the mortgagors, owners of the premises on which the grain was grown. The case was tried to a jury, and resulted in a verdict for the plaintiff. A motion in the alternative was thereafter made for a new trial or for judgment notwithstanding the verdict. The defendant grain company appeals from the judgment entered upon the verdict and from the order of the trial court denying the motion.

The original complaint was in the ordinary form, but contained no allegation as to when the conversion took place. The defendant grain company answered, setting up four separate defenses. The first defense is a general and specific denial of all the allegations of the complaint, except that of the corporate character of the defendant; the second in substance alleges that the chattel mortgage was procured by fraud; the third defense alleges that the plaintiff knowingly and without protest permitted the defendant grain company to advance money to the mortgagors upon the understanding that the grain in issue would be sold and delivered at the defendant's elevator at Lemert; the fourth defense alleges a waiver of its claim by the plaintiff in this, that it took new notes and new security for the note described in the complaint, and thereby and by extensions of time of the payment thereof waived the lien of the mortgage.

At the trial the plaintiff, having failed to prove conversion against the Jeskes, dismissed the case as to them; it filed a new amended complaint by leave of court, but over objection of counsel for the defendant grain company. No evidence was introduced or offered at the trial tending to establish the second defense. Some evidence was offered in support of the third defense, but that was squarely denied by the cashier of the plaintiff. On this point the verdict is conclusive. The same is to some extent true of the fourth defense; although evidence was offered thereunder; nevertheless the testimony of the cashier of the plaintiff tends to negative the construction put upon the transactions described in the fourth defense by the defendant grain company. This will be referred to later in this opinion.

The defendant grain company, appellant in this action, alleges numerous errors. It is asserted that the trial court erred in rulings upon evidence; that the dismissal as against the mortgagors amounts to a discharge of one joint tort-feasor for a consideration, and therefore is a discharge of the plaintiff's cause of action against the defendant grain company; that the court should have sustained defendant's contention to the effect that, when the plaintiff renewed the note secured by the mortgage, and took additional security, and received payments thereon subsequent to the time of the alleged sale of the grain to the defendant by the mortgagors, the plaintiff thereby elected to rely on a contract, and waived its right to sue in tort, and is now estopped from maintaining an action in conversion; that the court erred in permitting the plaintiff to amend its complaint so as to allege conversion on June 29, 1921, the first complaint not having alleged the date when the demand was made or the conversion took place; that the plaintiff failed to establish by a preponderance of the evidence that the grain raised on the premises described in the mortgage was delivered at the defendant's elevator; that is, it is claimed that the plaintiff failed to identify the grain; that there was no competent proof to establish the market price of grain on June 29, 1921, at Lemert, and that no proper demand was shown; that the court erred in denying the motion for a new trial on the ground of newly discovered evidence; that it was error to refuse to instruct the witness Jeske, one of the mortgagors, as to his privilege to refuse to testify upon the ground that his testimony might be incriminating; and that by its conduct the plaintiff has waived its right to the grain alleged to have been converted.

[1] The defendant contends that the court improperly permitted the witness Jeske, over objection, to testify that he saw the children who hauled the grain from his farm to an elevator at Lemert go “east to Lemert”; that it was error to permit this witness to testify that he instructed the children to haul the grain to the defendant's elevator; and that certain exhibits, being the weight checks issued by the elevator at which the grain was delivered, were delivered to the witness by the children when they returned from town; and that it was error to admit the weight tickets in evidence. It is contended that the rulings above set forth violated the rule against hearsay. We cannot agree with defendant's contention. There was no direct testimony produced at the trial for the purpose of identifying the grain and proving that it was delivered at the defendant's elevator at Lemert. It was competent, however, for the plaintiff to prove this ultimate fact by circumstantial evidence; it was properly established that a quantity of durum wheat was raised upon the premises described in the mortgage; that this was threshed by the defendant himself; it was proper for the witness to testify as to what he did with reference to the disposition of this grain. It was proper for him to state what instructions he gave to the persons who hauled the grain away from the farm; so far, he is testifying to nothing which is based upon the statements or the knowledge of other persons. Similarly, and for the same reason, it was proper to permit him to testify that the exhibits offered in evidence were delivered to him by the children upon their return. That the weight checks were in fact issued by the appellant appears not to be disputed. Whether these exhibits tended to establish the ultimate fact of the identity of the grain and the delivery thereof at the defendant's elevator are questions that must be answered upon other considerations. The testimony of the witness as to from whom he received the tickets and the circumstances under which he received them did not violate the rule against hearsay evidence. These were all facts and circumstances to be considered in connection with other facts with reference to the question of the identity and delivery of the grain. In none of the testimony alleged to be...