First National Bank of Fargo v. Red River Valley National Bank
| Decision Date | 23 May 1900 |
| Citation | 83 N.W. 221,9 N.D. 319 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Lauder, J.
Action by the First National Bank of Fargo against the Red River Valley National Bank of Fargo. Judgment for plaintiff. Defendant appeals.
Affirmed.
Mills Resser & Mills, for appellant.
It is contrary to the intention of the statute, § 5000, Rev Codes, that the plaintiff should, by its own delay in the prosecution of its case, enhance its damages. Pickett v Rugg, 1 N.D. 230, 46 N.W. 446; First Nat. Bank v Elevator Co., 8 N.D. 430, 79 N.W. 874; Page v. Fowler, 39 Cal. 412. The chattel mortgage so far as it attempts to secure notes of A. B. Thompson, made prior to the giving of the mortgage, is without consideration. § 3871, Rev. Codes; Parker v. Morrison, 46 N.H. 280; Kansas City Mfg. Co. v. Gandy, 9 N.W. 569.
Newman, Spalding & Stambaugh, for respondent.
Appellant having no right to the possession of the crops in question, cannot urge any defense to the mortgage of Cora A. Thompson. The case was ready for trial at the first jury term of court after the conversion, at which it could with reasonable diligence be placed on the calendar. Greater diligence would have been productive of no results. The law requires no such extraordinary diligence. Wright v. Bank, 110 N.Y. 249; Rossum v. Hodges, 1 S.D. 311; Fromm v. Mining Co., 61 Cal. 629; § 5094, Rev. Codes.
Plaintiff prosecutes this action to recover the value of a quantity of grain, consisting of wheat, oats, barley, and flax, which it claims the defendant took into its possession and converted some time between the 11th day of September, 1896, and the 25th day of February, 1897. The plaintiff bases its right to recover upon a certain chattel mortgage thereon executed by Cora A. Thompson, and dated on March 27, 1896. The plaintiff made a written demand on the defendant for the possession of said grain on February 25, 1897, and the same was refused, and on the same day this action was commenced in the District court of Cass county by the service of a summons and complaint. Defendant served its answer on April 17, 1897, and the plaintiff caused the case to be placed on the trial calendar of said court for the jury term commencing April 28, 1897. The judge of the Third Judicial District Court, wherein said action was pending for trial, was disqualified from presiding, and therefore called in the Honorable W. S. Lauder, judge of the Fourth Judicial District, by written request, as authorized by section 5179, Rev. Codes, to try the case. The case was tried at the February 9, 1899, term of said court, which was the first jury term of court, at which the cause could be tried by Judge Lauder, since its commencement. The plaintiff recovered a verdict of $ 1,062.95, and judgment was entered on the verdict. The defendant caused a statement of the case to be settled, embracing specifications of numerous alleged errors of law, which are urged in this court as grounds for reversing the judgment.
It will be necessary, before proceeding to the consideration of the errors assigned in counsel's brief, to state the following preliminary facts: The land upon which the grain in controversy was grown consists of two adjoining quarter sections, situated in Cass county, and about 25 miles from Fargo, where both the plaintiff and defendant banks are located. These lands were school lands, and were sold by the board of university and school lands in 1893, one quarter to R. S. Thompson, and the other to Mary A. Thompson, and the usual sale contracts issued to such purchasers. R. S. Thompson died in 1894, and Mary A. Thompson died in 1895. On March 27, 1896, all of the heirs of the above-named persons joined in a quitclaim deed conveying said premises to Cora A. Thompson. The grain in question was the crop of 1896. It was raised and harvested by tenants under an agreement by which the tenants were to receive one-half of the crop, the seed being furnished by the landlord. The tenants received their share, and that in controversy is the other part. On the 27th day of March, 1897, which was the day she received the quitclaim deed from the heirs, Cora A. Thompson executed and delivered a chattel mortgage to the plaintiff bank upon all her interest in all crops of every name and nature to be grown on said land during said year. This mortgage secured two notes signed by A. B. Thompson, who was the husband of the mortgagor, as follows: One for $ 294.15, dated February 8, 1895; the other for $ 255, dated March 27, 1895, -- the due date of both being October 1, 1895. Besides the foregoing notes of her husband, the mortgage, in terms, secured "all future advances, loans, or discounts" which said bank might thereafter make to the mortgagor, "and all future indebtedness of said mortgagor to said bank, of every name and nature whatever." It appears that the plaintiff made advances under said mortgage to pay delinquent taxes on the land in question, and also to purchase the seed grain from which the grain in dispute was grown. For these advances Cora A. Thompson gave the plaintiff her personal note. The total amount due upon the two notes of her husband, which are described above, and for the advances for seed and taxes which we have just mentioned, at the date of the verdict, was $ 1,175.13, which is $ 112.18 more than the amount of the verdict recovered. The defendant seized the grain in question on September 11, 1896, upon the supposition that it was the property of A. B. Thompson, the husband, and under a chattel mortgage executed by him on October 1, 1893, covering the crop of 1896.
We now turn to the errors assigned and urged in the brief of appellant's counsel:
First, error is assigned on the court's ruling denying a motion for a directed verdict made at the close of plaintiff's evidence. This assignment need not be considered. The record shows that after the motion was denied the defendant introduced further evidence, and thereafter failed to renew the motion. This court, in an early case, established the rule that error cannot be predicated upon a refusal to direct a verdict at the close of plaintiff's case, when testimony is thereafter offered by the defendant. The error, if any exists, is waived unless the motion is renewed at the close of the testimony. Bowman v. Eppinger, 1 N.D. 21, 44 N.W. 1000. See, also, Colby v. McDermont, 6 N.D. 495. 71 N.W. 772; Tetrault v. O'Connor, 8 N.D. 15, 76 N.W. 225.
Counsel for the defendant requested the trial court to instruct the jury that the plaintiff could not recover for the amount represented by the two A. B. Thompson notes, which are described in the mortgage, upon the ground that as to said notes the mortgage was without consideration. The same question was presented by an objection to the introduction of the notes and chattel mortgage in evidence, and also by an exception to the court's charge to the jury permitting the jury to include said notes in computing the amount secured by plaintiff's chattel mortgage. The court did not err on this point. It is true that the plaintiff offered no independent evidence to establish the existence of a consideration for the mortgage, so far as it relates to these two notes. Neither, on the other hand, was evidence offered by defendant to show that there was no consideration. In that condition of the record, the statutory presumption that there was a sufficient consideration, which attaches to every written instrument, must prevail. Section 3880, Rev. Codes, provides that "a written instrument is presumption of a consideration;" and the next section (3881) provides that "the burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it." No independent proof of consideration was necessary until it was attacked by the defendant by evidence which would overcome the statutory presumption.
In fixing the measure of damages the trial court determined that the plaintiff was entitled to the highest market price of the grain between the date of the alleged conversion and the verdict, without interest, instead of the value of the property at the date of the conversion, with interest thereafter, and, against the defendant's objection permitted plaintiff to amend...
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