Fried v. Olsen
| Decision Date | 24 November 1911 |
| Citation | 133 N.W. 1041,22 N.D. 381 |
| Parties | FRIED v. OLSEN et al |
| Court | North Dakota Supreme Court |
Rehearing denied December 19, 1911.
Appeal from District Court, Griggs county; E. B. Goss, Special Judge.
Action by Anton Fried against N. J. Olsen and others, doing business under the firm name of N. J. Olsen & Sons. From a judgment in plaintiff's favor, defendants appeal.
Affirmed.
Lee Combs, for appellants.
Bartlett & Gladstone, for respondents.
FISK J. GOSS, J., took no part in the decision; Honorable W. C CRAWFORD, of the Tenth Judicial District, sitting in his place by request.
Action to recover damages for the alleged conversion by defendant of certain wheat upon which plaintiff claims to hold a seed lien. During the times herein mentioned, defendants were public warehousemen engaged in operating an elevator at Hannaford, in this state; and it is not in dispute that they purchased from one Brunsvold at their elevator, in the fall of 1909, 470 bushels and 20 pounds of wheat which was raised by one Sabby during said year on the N. 1/2 of section 15, township 144, range 61; that such wheat was thereafter demanded from them by plaintiff, which demand was refused; and that at the date of such demand the value thereof was $ 402.15. Nor is there any serious controversy as to the fact that plaintiff in the spring of said year furnished to Sabby certain seed wheat to be sown on said land, the agreed price of which was $ 385, no part of which has been paid, and, to secure the payment of such purchase price, plaintiff in due form filed the necessary verified statement to entitled him to the statutory seed lien on the crops raised on said land from such seed. The vital question of fact in dispute is whether the grain purchased from Brunsvold by defendants was, in fact, grown from the seed thus furnished to Sabby by plaintiff. There are other questions raised, but we find it unnecessary to notice them except in a general way.
At the conclusion of the testimony, defendants' counsel moved for a directed verdict, which was denied. Thereafter the court, on plaintiff's motion and over the objection of defendants, directed a verdict in his favor. Exceptions to both rulings were preserved. Whether these rulings were erroneous depends on the state of the proof at the time they were made. Was there any substantial evidence to prove the alleged fact that the wheat in controversy was raised from the seed thus furnished by plaintiff to Sabby? If not, then manifestly there is no proof of the essential fact of plaintiff's special property in such grain, and a verdict should have been directed the other way.
Aside from the proof that plaintiff sold such seed to Sabby to be sown on the land above described, that such seed was blue stem wheat, and that Sabby raised a crop of this kind of wheat on said land in 1909, there is no direct evidence in the record that the identical seed thus furnished was in fact sown on the land. It is true the evidence shows that in 1909 Sabby agreed at the time of the purchase thereof to use this seed on such land, and there is no proof that he did not do so. The fact that Sabby absconded in the fall of 1909 no doubt accounts for the meager showing on this important point. However, we think, in the absence of some evidence to the contrary, the presumption will be indulged that Sabby used the seed for the purpose for which he purchased it, as by § 9443 of our Penal Code of 1905, which was then in force, it is expressly made a misdemeanor for him to have done otherwise. The section reads: "Every person who, having procured upon credit under the provisions of chapter 84 of the Civil Code any seed to be sown or planted upon any designated tract or piece of land, either: (1) Uses the same or any part thereof for any other purpose; or, (2) sows or plants the same or any part thereof upon any tract or piece of land other than that designated, without the written consent of the party who furnished such seed, is guilty of a misdemeanor."
It is a universally recognized presumption of law that no one has committed a public offense, and this is embodied in statutory form in this state. Section 7317, Rev. Codes 1905. By the aid of such presumption we reach the conclusion, therefore, that the trial court was justified, in the light of the record, in assuming as an established fact that Sabby sowed such seed on the land above described, and that the wheat in controversy was raised therefrom. Having reached this conclusion, it follows that the judgment must be affirmed, unless the record somewhere discloses prejudicial error in the...
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