Hampton v. Ross

• Decision Date: 10 February 1928
• Docket Number: No. 5449.,5449.
• Parties: HAMPTON v. ROSS.
• Court: North Dakota Supreme Court

56 N.D. 423

217 N.W. 845

HAMPTON

v.ROSS.

No. 5449.

Supreme Court of North Dakota.

Feb. 10, 1928.

Syllabus by the Court.

In an action for the conversion of certain personal property wherein both plaintiff and defendant claim to be the owner of the property in dispute, through purchase from the same vendor, the evidence is examined, and it is held, that there is a square conflict in the evidence upon the question of ownership and that the verdict of the jury on that question is binding on the court.

Certain assignments of error predicated upon rulings in the admission and exclusion of evidence are considered, and the rulings held to be proper or nonprejudicial.

For reasons stated in the opinion it is held, that the trial court did not err in refusing to grant a new trial on the ground of newly discovered evidence.

Appeal from District Court, Cass County; Cole, Judge.

Action by Thomas J. Hampton, otherwise known as Thos. J. Hampton, against T. J. Ross for conversion. From a judgment for defendant and an order denying his motion for a new trial, plaintiff appeals. Affirmed.A. C. Lacy, of Fargo, for appellant.

W. H. Barnett and Seth W. Richardson, both of Fargo, for respondent.

CHRISTIANSON, J.

[1] This controversy involves the ownership of 2 cows and 17 hogs. Both plaintiff and defendant claim to be owners. Each of them claims to have purchased the same from one John Gamble in November, 1926. The defendant obtained possession and refused to surrender the same to plaintiff upon demand. The plaintiff thereupon brought this action alleging that he was the owner and entitled to the possession of such property on and after November 18, 1926, and that the defendant unlawfully took the same into his possession and converted the same to his own use, to plaintiff's damage in the sum of $475. The defendant interposed a general denial. The issues thus framed were tried to a jury and resulted in a verdict in favor of the defendant. Judgment was entered accordingly. Thereafter plaintiff moved for a new trial on the grounds of insufficiency of the evidence, errors of law occurring at the trial, and newly discovered evidence. The motion was denied and plaintiff appealed from the judgment and from the order denying a new trial.

The facts necessary to an understanding of the questions raised on the appeal are as follows: In November, 1926, and for some time prior thereto, one John Gamble was occupying a farm in the vicinity of Arthur, Cass county, in this state, as a tenant of one Elmer Smith. The defendant Ross was a merchant at Arthur, from whom said John Gamble had purchased merchandise on credit. The plaintiff Hampton resides in Fargo, where according to his testimony he is engaged in the collection, real estate, and law business. According to the testimony of the plaintiff, Hampton, and the witness Elmer Smith, these two on November 18, 1926, went to the farm occupied by Gamble, and Hampton thereupon purchased from John Gamble all the personal property on said farm belonging to Gamble, including the cows and hogs in the controversy here. These parties further testified that the plaintiff drew up a bill of sale on a piece of paper torn out of a tablet; that John Gamble executed the same, and Elmer Smith signed as witness thereto; and that the bill of sale was delivered to the plaintiff. The bill of sale, however, was never filed for record in the office of the register of deeds, and the plaintiff testified that although he had made search he was unable to locate it and could not produce it.

Hampton and Smith both testified that the purchase price paid to Gamble consisted of certain notes theretofore executed by Gamble to Smith and by him transferred and indorsed to Hampton for value. The plaintiff further testified that on November 23, 1926, he again went out to the farm and found the 2 cows and 17 hogs in controversy missing, and that he ascertained that they had been taken away by the defendant Ross. Hampton further testified: That thereafter on December 4, 1926, he went to see Ross, and that Ross then admitted that he had caused the hogs and cattle to be taken away and claimed that he had a chattel mortgage on such animals executed and delivered to him by John Gamble. And that in such conversation Ross further stated that before the chattel mortgage was executed Ross was informed by Gamble that he (Gamble) had given to the plaintiff, Hampton, a bill of sale of all his (Gamble's) personal property including the hogs and cattle in controversy; but that Ross had examined the reports relating to instruments filed in the register of deeds office and had ascertained that such bill of sale had not been filed for record, and that therefore he had taken a chattel mortgage and dated it back (to September 25, 1926) with the idea that such chattel mortgage being of a prior date would become good as against such unfiled bill of sale; and that said Ross then and there told Hampton that he intended to stand on his mortgage. Hampton further testified that he again saw Ross on or about December 20, 1926, and had a somewhat similar conversation with him. The witness Elmer Smith testified that he saw Ross on December 24, 1926, and then served upon him a written demand signed by the plaintiff demanding possession of the hogs and cows. The original demand with Smith's affidavit of service attached thereto was offered and received in evidence. Smith further testified that at this time he had a conversation with Ross; that in such conversation Ross stated that he had knowledge of Hampton's bill of sale; that Gamble told him of this bill of sale before he (Gamble) executed the chattel mortgage to Ross; and that in such conversation Ross further told Smith that the mortgage had been dated back so as to take precedence over the bill of sale; and that he (Ross) intended to stand on his chattel mortgage. The testimony on the part of the plaintiff was to the effect that the hogs and cows were of the aggregate value of $375. The testimony on the part of the defendant was to the effect that their aggregate value was $250.

The defendant, Ross, testified that during 1926 he had furnished Gamble groceries on credit; that later Gamble gave a promissory note for this account; that about September 25, 1926, Gamble offered to give Ross a chattel mortgage to secure the payment of the note; that on or about November 23, 1926, Gamble came in, and certain negotiations were had as a result of which Gamble executed a chattel mortgage to Ross to secure the payment of a note for $247.88 dated September 25, 1926, and due November 30, 1926; and that in accordance with Gamble's suggestion the mortgage was postdated to September 25, 1926, the date of the note, and the approximate date when Gamble first offered to give the mortgage. The chattel mortgage covered not only the hogs and the cows, but also three horses, a gas engine, and certain farm machinery. Gamble further testified that on that same day a deal was made whereby Ross purchased from Gamble the cows and hogs described in the mortgage and in consideration thereof agreed to deliver and did surrender to Gamble the promissory note secured by the chattel mortgage. Ross further testified that on November 24, 1926, he sent one Roden with a truck out to the farm where Gamble was living; that Gamble accompanied Roden on this trip; and that the hogs were loaded in the truck and taken to the farm of one Frank Johnson, where Ross had arranged to have them kept and fattened for the market. Ross further testified that some four or five days later, the cows were taken by Roden with a truck and delivered to a farmer living near Gamble's place; and that he (Ross) still has such cows in his possession. Ross testified that as a result of this transaction Gamble's indebtedness to him was fully satisfied. Ross denied that at the time of the purchase he had any knowledge or notice of any deal, executed or pending, between Gamble and Hampton; and he positively denied that Gamble at any time intimated to him that he had executed a bill of sale to Hampton. Ross further testified that when Hampton came to see him (Ross) about the matter that he (Hampton) stated that Gamble had given a bill of sale to Smith. Ross denied that in his conversations with Hampton and Smith he ever...