First State Bank of Kief v. Osborne-McMillan Elevator Co.

• Decision Date: 09 January 1926
• Docket Number: No. 4859.,4859.
• Citation: 207 N.W. 37,53 N.D. 551
• Parties: FIRST STATE BANK OF KIEF v. OSBORNE-McMILLAN ELEVATOR CO.
• Court: North Dakota Supreme Court

53 N.D. 551

207 N.W. 37

FIRST STATE BANK OF KIEF

v.OSBORNE-McMILLAN ELEVATOR CO.

No. 4859.

Supreme Court of North Dakota.

Jan. 9, 1926.

Syllabus by the Court.

In an action for the conversion of grain, it is held, that the evidence is sufficient to establish the plaintiff's ownership of the grain alleged to have been converted.

In an action for conversion of personal property, demand is unnecessary, where the evidence shows that it would have been futile.

Where an issue is not raised by assignment of error, and is not argued in the brief, the same is deemed to have been abandoned.

Where an action for conversion has been prosecuted with reasonable diligence, the plaintiff may recover the highest market price between the time of conversion and the verdict.

Where the answer alleges another action pending between the same parties for the same cause, and the evidence sustains such allegation, but where there is neither allegation nor proof that the pending action has proceeded to judgment, the pendency of the first action is not a bar to the second.

It is held, for reasons stated in the opinion, that there had been no conclusive election of an inconsistent remedy.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by the First State Bank of Kief against the Osborne-McMillan Elevator Company. From a judgment for plaintiff, defendant appeals. Affirmed.F. B. Lambert, of Minot, for appellant.

Campbell & Funke, of Minot, for respondent.

BERRY, District Judge.

This action was brought by the plaintiff, bank, against the defendant, elevator company, for an alleged conversion of 962 bushels of No. 1 and 79 bushels of No. 4 mixed Durum wheat, raised by one Anton Volochenko, on land in McLean county owned by Carl W. Covlin.

The case was tried to the court and jury. At the close of the trial, the jury was waived. The court made findings and ordered judgment for the plaintiff for $370.75, with 10 per cent. interest thereon since October 16, 1919, as damages, the same being the amount of plaintiff's note and mortgage.

The plaintiff's special interest in the wheat was based upon a chattel mortgage, dated October 16, 1919, given by Anton Volochenko to the plaintiff upon his one-half interest in said crop, to secure the payment of a promissory note for $370.75 of even date with the mortgage, and due October 1, 1920; that the grain was raised by Mr. Volochenko in 1920 upon said land, and by him hauled to the defendant elevator company's warehouse at Dogden, on or about the 9th day of September, 1920; that on the 14th day of September, 1920, one W. A. Bokovoy, an inferior mortgagee to the plaintiff herein, made due demand of the defendant for possession of said grain for the purpose of foreclosure of his mortgage, and was refused. The complaint alleging conversion is in the usual form.

The defendant interposed an answer setting forth that there was another action pending between the same parties for the same cause, and declares, quoting from the answer, “that the plaintiff now is estopped by the judgment hereinafter to be entered in said action from further proceeding on the cause of action, in both of said actions involved,” and for a second defense denies generally and specifically all of the allegations of plaintiff's complaint.

The case of Covlin v. Volochenko (N. D.) 204 N. W. 892, and the case at bar were argued at the same time before this court. Attorney Lambert appeared for Osborne-McMillan Elevator Company and Attorney Campbell for the First State Bank of Kief in both cases. The elevator company was garnishee, and the plaintiff bank was interpleaded in the former case.

The entire record on appeal in both cases is before this court, and one argument was made by counsel in both cases.

1. The first assignment of error challenges the ruling of the trial court in permitting Anton Volochenko to testify orally that he was the owner of an undivided one-half interest in the wheat. It was shown that the lease was in writing, and no excuse was offered for its nonproduction. The defendant contends that the lease was the best evidence of its contents, as to the share of the crop belonging to Mr. Volochenko. It is unnecessary to decide this question. If the same was error, it was without prejudice. In Covlin v. Volochenko (N. D.) 204 N. W. 892, the trial court found, in paragraph VI of findings of fact, which has not been modified by this court on appeal, and which is binding on both parties to this action, that Anton Volochenko is an owner of a one-half interest in and to said grain.

[1] 2. The second assignment of error raises the question as to the identity of the grain. Was same raised upon the land described in the chattel mortgage? In respect to the sufficiency of the evidence to sustain the finding that the grain delivered to the defendant elevator company was grain raised upon the Carl W. Covlin land covered by the mortgage, we are satisfied that Mr. Volochenko's testimony upon that fact is sufficient. He testified that he knew the Carl W. Covlin land in McLean county; that he rented it of Mr. Covlin in 1920, and raised wheat upon it that year, and delivered same to defendant, elevator company, at Dogden, though at the time he testified he could not remember the legal description of the land; that it was the same land upon which he gave Mr. Stringer a chattel mortgage on the crop. A. C. Stringer testified that he was the cashier of the plaintiff bank in 1919, and secured the mortgage in question for the bank from Mr. Volochenko.

[2] 3. The next assignment of error challenges the holding of the trial court that a conversion of the grain by the defendant took place, there being no evidence of a demand and a refusal. A demand by the plaintiff for the possession of the grain in question in this action for the purpose of foreclosure and sale manifestly would have been futile on December 31, 1920, when the defendant's attorney signed and swore to the disclosure in garnishment, set forth in the case of Covlin v. Volochenko, supra. It then became apparent that the controversy over the grain in question was based upon conflicting claims, and that the defendant was in the act of seeking a legal determination of the rights of the parties. Nor would a demand have been complied with at any time prior to the date of said disclosure, or subsequent to the 26th day of November, 1920, when the defendant herein was served with the process in garnishment in the said case of Covlin v. Volochenko, and for the same reason. We think that the evidence fairly discloses as a fact that a demand would have been futile if made by plaintiff on September 14, 1920, when the demand was made by W. A. Bokovoy, and for the same reason that delivery was refused to Mr. Bokovoy. However, for the purposes of this decision, it is unnecessary to make such finding, in view of the fact that a demand certainly would have been of no avail on the 26th of November, 1920. Demand was unnecessary under the well-established principle that it would have been unavailing. See Myrick v. Bill, 3 Dak. 284, 17 N. W. 268;Raper v. Harrison, 37 Kan. 243, 15 P. 219;More v. Burges, 15 N. D. 345, 107 N. W. 200;Kastner v. Andrews (N. D.) 194 N. W. 824.

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