Fraine v. N.D. Grain & Land Co.

• Decision Date: 26 December 1918
• Citation: 170 N.W. 307,41 N.D. 172
• Court: North Dakota Supreme Court
• Parties: FRAINE v. NORTH DAKOTA GRAIN & LAND CO.

41 N.D. 172

170 N.W. 307

FRAINE

v.NORTH DAKOTA GRAIN & LAND CO.

Supreme Court of North Dakota.

Nov. 29, 1918.

Rehearing Denied Dec. 26, 1918.

Syllabus by the Court.

Under the usual cropping contract, when the landowner is to have a share of the crop and the tenant or cropper a share, each party has at all times title to his share, and neither party has any right to sell or dispose of the share of the other party.

Appeal from District Court, Pierce County; A. G. Burr, Judge.

Action by George W. Fraine against the North Dakota Grain & Land Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.Harold B. Nelson, of Rugby, for appellant.

Richard E. Wenzel, of Rugby, for respondent.

ROBINSON, J.

In 1916, the plaintiff was the owner of part of section 5-154-72. Under contract with plaintiff, Andrew Lindseth, or Lindseth Brothers, farmed the land, sowed, harvested, and threshed a crop of barley amounting to 396 bushels. Lindseth was to furnish the seed grain and to have all of the hay, and each party was to pay for half of the twine bill and to have an equal share in the crop. After threshing Lindseth hauled the barley to the grain elevator. Then on August 30, 1916, R. E. Wenzel, the attorney and agent of defendant, claimed half the barley, and in his presence it was sold to the elevator company, and its check was given to Lindseth Brothers, and they made their check to Wenzel for the gross price of half the grain, $129. On that check payment was stopped, because by inadvertence no allowance had been made for twine, threshing, and hauling. On September 6, 1916, Lindseth Brothers made to R. E. Wenzel, a check in lieu of the first for $127.54, out of which there was paid for the threshing, twine, and hauling $21.14, and the balance, $106.40, Wenzel remitted to his clients, the defendants, and they received and retained the same. They claim that they are not liable in this suit, because it is not in the form of an action for money had and received.

Under the Code there is but one form of action which is named a civil action. All forms of pleading are abolished. The first pleading on the part of the plaintiff is the complaint which should contain a plain and concise statement of the facts constituting a cause of action. As the facts may not all be known, at the time of commencing an action, and as parties are not all skillful in making a proper statement of facts, the courts may permit pleadings to be amended before and after judgment and during the trial, and may disregard errors and defects. In this case, the plaintiff might well have moved to amend his complaint to conform to the evidence, and show that defendant had been a party to the sale of the grain, and had, on September 6, 1916, received from the sale, the net proceeds being $106.40. But the defendants were not in any way misled by the form of the complaint; they and their attorney, Wenzel, knew that they had received the money, and had no right to retain it. Under date of October 24th, Wenzel wrote George W. Fraine, saying:

“Through mistake the North Dakota Grain & Land Company obtained the landlord's share of the crop on your 120 acres in section 5-154-72 instead of the 160 in section 7-154-72.”

The defense made is not to the credit of either the defendants or their...