First Sec. Bank v. Bagley Elevator Co.

• Decision Date: 06 July 1931
• Docket Number: No. 5930.,5930.
• Parties: FIRST SEC. BANK v. BAGLEY ELEVATOR CO.
• Court: North Dakota Supreme Court

61 N.D. 140

237 N.W. 648

FIRST SEC. BANK

v.BAGLEY ELEVATOR CO.

No. 5930.

Supreme Court of North Dakota.

July 6, 1931.

Syllabus by the Court.

Where one makes a motion for judgment notwithstanding the verdict, it is incumbent upon him to show that he is entitled to a verdict and judgment as a matter of law, and this depends upon the nature and character of the evidence introduced.

Syllabus by the Court.

Upon such motion the court will review the evidence to determine whether such motion should be granted, even though a motion for a new trial be not made.

Syllabus by the Court.

Where the sole question presented to the court is the right of plaintiff to judgment notwithstanding the verdict, this court will not review alleged errors occurring at the trial in the introduction of evidence or in the charge to the jury, or that there is not sufficient evidence to justify a verdict for the defendant, the court being concerned merely in ascertaining whether the evidence shows, as a matter of law, the plaintiff is entitled to the verdict and judgment.

Appeal from District Court, Grant County; Thomas H. Pugh, Judge.

Action by First Security Bank, a private corporation, at Raleigh, N. D., against the Bagley Elevator Company, of Minneapolis, Minn. From an adverse judgment, plaintiff appeals.

Affirmed.

Kelsch & Higgins, of Mandan, for appellant.

Jacobsen & Murray, of Mott, and Morrison & Skaug, of Mobridge, for respondent.

BURR, J.

This is an action in conversion. It is the claim of the plaintiff that over five hundred bushels of wheat were raised on its farm by its tenant George Bird under a written lease wherein the tenant was to pay a cash rent of $500 and the title to the wheat was reserved in the plaintiff until the rent was paid; that the tenant paid but $75 on the rent, and sold the wheat to the defendant without the knowledge and consent of the plaintiff; that plaintiff demanded the wheat from the defendant and the defendant refused to deliver it to the plaintiff, and therefore the plaintiff is damaged in the sum of $425. So plaintiff asks judgment for $425, with interest at 6 per cent. from the date of conversion.

The defendant says the tenant paid the rent in full, and, further, that the defendant paid the tenant for this grain by check drawn on or through the plaintiff bank, and that the bank cashed the checks “well knowing that said checks represented the purchase price for the alleged grain which the plaintiff now claims to have a lien” upon, and therefore that the plaintiff consented to the sale and permitted its tenant to sell the grain with knowledge of the sale and without objection or protest; and thus, if plaintiff ever had any interest in the grain, it waived its right thereto by its conduct and its actions.

A jury was impaneled, and at the close of the case the plaintiff moved for a directed verdict, which motion was resisted and therefore denied. The court, however, notified the counsel for each party that “should there be an appeal the court desires that a motion for a new trial or judgment non obstante be made.” The jury returned a verdict for the defendant, and the plaintiff moved for judgment notwithstanding the verdict, which motion was denied. Judgment was entered dismissing the action, and plaintiff has appealed.

[1][2][3] Respondent raises a question of practice involving the right of the appellant to a review of the sufficiency of the evidence. Appellant made no motion for a new trial in the court below. Respondent says that, owing to the provisions of Section 7843, which says: “No motion for a new trial shall be necessary to obtain, on appeal, a review of any questions of law or of the sufficiency of the evidence, unless, before the taking of the appeal, the judge shall notify counsel of the party intending to take the appeal that he desires such motion to be made,” appellant cannot have a review of the sufficiency of the evidence because he made no motion for a new trial.

This point is not well taken. The appellant is not asking for a new trial. Ignoring the fact that the request of the trial judge was made before the case was submitted to the jury, and therefore before it was known who could be “the party intending to take the appeal,” the request of the court was for “a motion for new trial or for a judgment non obstante.” Appellant made motion for judgment notwithstanding the verdict, and thus nullified the effect of the request of the judge so far as the provisions of section 7843 are concerned. In addition, a motion for judgment notwithstanding the verdict requires the review of the sufficiency of the evidence for the purpose of determining whether such motion should have been granted. The appeal is from the order denying the motion. This court must explore the record to the extent of determining whether the appellant is entitled to judgment notwithstanding. See Rokusek v. National Union Fire Ins. Co., 50 N. D. 123, 195 N. W. 300;Satterlee v. Modern Brotherhood of America, 15 N. D. 92, 106 N. W. 561.

In order to justify judgment notwithstanding the verdict it is essential the plaintiff prove that under the evidence in the case it was entitled to a verdict and judgment as a matter of law, and this depends upon the nature and character of the evidence introduced.

There is no question but what the plaintiff was the owner of the land; that George Bird was the tenant farming the land under a written lease; that the tenant was to pay a cash rent of $500 “due and payable when grain is threshed and marketed”; that the title of all of the grain raised was reserved in the plaintiff until the rent was paid. This lease was not filed for record; but under the holding of this court, in the case of Merchants' State Bank v. Sawyer Farmers' Co-operative Ass'n, 47 N. D. 375, 182 N. W. 263, 14 A. L. R. 1353, it was not necessary for the plaintiff to file this lease in order to charge the defendant with liability in case it purchased the grain without consent from the plaintiff, even though the landlord received money as rent. See, also, McFadden v. Thorpe Elevator Co., 18 N. D. 93, 118 N. W. 242.

There are but two main facts to be determined: First, did the tenant pay his rent; and, second, if not, is the plaintiff estopped from claiming that the sale of the grain was made without its knowledge or consent?

It is not contended by defendant that the...