Golly v. Northland Elevator Co.

Decision Date25 January 1926
Docket NumberNo. 5014.,5014.
Citation207 N.W. 438,53 N.D. 564
CourtNorth Dakota Supreme Court


Syllabus by the Court.

A plea or answer alleging the pendency of another action between the same parties, involving the same subject-matter, presents matter in abatement and not in bar of the cause of action alleged in the complaint.

Where property upon which one has a lien passes to the possession of another charged with the lien, and where the possessor subsequently disposes of the same in derogation of the right of the lienholder, such lienholder has an election to charge the wrongdoer in an action ex contractu or in an action in tort for conversion.

The bringing of a foreclosure action against the party in possession at the time the lien arose and against those into whose hands the property had passed subject to the lien, where the complaint was reasonably construed to allege the continued existence of the property within the jurisdiction of the court, does not manifest an election to waive any tort that may have been committed and to sue in contract.

The plaintiffs sued as partners, and it is held, for reasons stated in the opinion, that there was not a failure of proof in support of the allegation of partnership.

Where the market value of a commodity at a given time is in issue, it may be proved by one who made inquiries of persons engaged in buying in that market at the time, and his recollection may be refreshed by concurrent memoranda.

Where, on cross-examination, a witness is sought to be examined concerning a matter not covered in his direct examination and which is material to a defense upon which no evidence had been introduced at the time, such testimony may be properly excluded.

Where documents, which afford evidence of the plaintiffs' right in property which is the subject-matter in issue, are derived from the possession of the defendant, they may be introduced in evidence without a further foundation, consisting of testimonial knowledge of the witness as to the handwriting of the defendant's agent, by whom they appear to have been written.

Where it appears that an erroneous instruction affects only a matter of interest, the judgment may be corrected by eliminating that part which is affected by the instruction.

Appeal from District Court, Ward County; Geo. H. Moellring, Judge.

Action by N. O. Golly and another, as copartners, against the Northland Elevator Company, a corporation. From a judgment for plaintiffs and from an order overruling defendant's alternative motion for judgment non obstante, or for a new trial, defendant appeals. Judgment reduced, and as so reduced affirmed.F. B. Lambert, of Minot, for appellant.

Paul Campbell, of Minot, for respondents.


This is an action in conversion by the plaintiffs as holders of a thresher's lien. The complaint alleges that the plaintiffs were copartners owning and operating a threshing machine in the fall of 1921; that they threshed certain grain for one Carl Kleiner at the agreed reasonable price of $20 per hour; that, after the threshing was completed and pursuant to chapter 97 of the Civil Code for 1913, the plaintiffs caused to be made and filed, in the office of the register of deeds of Ward county, a lien statement for said work; that on or about September 13, 1921, the defendant, being in possession of grain covered by the lien of a value largely in excess of the amount due the plaintiffs, unlawfully disposed of and convertedthe grain to its own use. The answer is in the nature of a general denial. It specifically denies the partnership and the conversion. It sets forth a further defense to the effect that any grain possessed by the defendant, covered by the lien and sold by the defendant, was sold to some person other than the plaintiffs with the permission, consent, authority, and direction of the plaintiffs, and that the lien of the plaintiffs was thereby waived. As a further defense, it is alleged that at the time of the commencement of the action there had been, and at the time of answering was, another action pending between the plaintiffs and the defendant involving the same subject-matter and presenting the same issues, by reason of which fact the plaintiffs had elected to proceed upon another theory of liability. At the trial in the court below, the plaintiffs recovered a judgment for the amount of their lien, $332.50 and costs, with interest from March 6, 1924, the date of the service of a written demand upon the defendant. From that judgment, and from an order overruling the defendant's alternative motion for judgment non obstante, or for a new trial, the defendant appeals. The abstract of the pleadings above will serve as an indication of the nature of the case and the issues involved. The facts which developed upon the trial will be more accurately stated in considering the contentions advanced upon the appeal.

It is first argued that the pendency of another action between the same parties operated as a bar to the maintenance of the present suit. The answer identifies the action as being that of Golly et al. v. Kiner et al. (N. D.) 197 N. W. 883. That action was brought very soon after the completion of the threshing for the foreclosure of a thresher's lien. The defendant in the present action demurred to the complaint in the foreclosure action and the demurrer was overruled. From the order overruling the demurrer, it subsequently appealed to this court, where the order was affirmed. Golly et al. v. Kiner et al., supra. One of the principal contentions on the appeal was that the complaint was defective because not expressly alleging that the property was in existence and within the jurisdiction of the court when the action was commenced. This court examined the complaint and ruled that, in view of the short period of time elapsing between the completion of the threshing and the commencement of the action, it was sufficient as against this attack. An answer was later interposed in the foreclosure suit, which was sustained as against a demurrer. The trial court in the case at bar, being of the opinion that the facts set up in the answer in the foreclosure suit would, if established, prevent recovery therein, ruled adversely to the defendant's contention that the foreclosure suit barred the present action. That suit has not been tried and no judgment has been entered therein.

[1] The appellant argues that for any legal injury which the plaintiffs had sustained, by virtue of its (the defendant's) wrongful conduct touching the grain in question, it may have either of two remedies: A contractual remedy, enforceable through the foreclosure action, or a remedy to recover damages for the tortious act. It is said that these remedies are inconsistent and cannot coexist; that therefore the bringing of the foreclosure action constituted an election and a bar to the present suit. It is also urged that the pendency of the former suit bars the present action.

It is elementary that the plea of another action pending presents matter in abatement merely and not in bar. First State Bank v. Osborne-McMillan Elevator Co. (N. D.) 207 N. W. 37; 1 Ency. Plead. & Pract 773 et seq.; 1 C. J. 1162. Hence the question resolves to one of election of remedies and may be stated thus: Where the owner of a special property in the nature of a lien has a right to foreclose the lien and has the additional right to recover damages from a defendant to the extent of his lien based on a conversion of the property by the latter, does the bringing of an action for foreclosure constitute an election as between inconsistent remedies? The foreclosure action may well be considered as an attempt to charge the defendant with the lien, considered as a contract right, by following the property into its hands and subjecting it to the lien; whereas, the present action is clearly an attempt to charge the defendant with the value of the property on account of a wrongful conversion. The principle of election, therefore, is applicable. 9 R. C. L. 967. In this situation it may be true that the pursuit of one remedy is generally a bar to the other. 9 R. C. L. 968.

[2][3] But, says the authority last above cited:

“Where, however, the plaintiff in pursuing his rights does not show any intention to affirm the taking or...

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