Heiszler v. Beddow
| Decision Date | 25 March 1912 |
| Citation | 135 N.W. 660,23 N.D. 34 |
| Parties | HEISZLER v. BEDDOW |
| Court | North Dakota Supreme Court |
Appeal from the District Court of La Moure county; Goss, J.
Action for the wrongful conversion of money. Verdict and judgment for the plaintiff. Defendant appeals.
Affirmed.
Davis & Warren, for appellant.
Defendant could show under his general denial that plaintiff never had a cause of action. Hogen v. Klabo, 13 N.D. 319, 100 N.W. 847; Phoenix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669, 10 N.W. 151; Bliss, Code Pl. § 327; 1 Enc. Pl. & Pr. 817, 819; Sodini v. Gaber, 101 Minn. 155, 111 N.W. 962; 31 Cyc. 680, 681.
The court, whether requested or not, should correctly and fully charge the jury on every point material to the decision of the case on which there is evidence. 11 Enc. Pl. & Pr. 159; Judson v. Winsted, 80 Conn. 384, 15 L.R.A.(N.S.) 91 68 A. 999; Moline Plow Co. v. Gilbert, 3 Dak. 239 15 N.W. 1; Ferris v. Marshall, 1 Neb. (Unof.) 377, 96 N.W 602.
M. C Lasell, for respondent.
The judgment roll is the only matter before the court. First Nat. Bank v. McGuire, 12 S.D. 226, 47 L.R.A. 413, 76 Am. St. Rep. 598, 80 N.W. 1074; 23 Cyc. 622.
BRUCE, J. GOSS, J., did not participate.
This action, when stripped of all confusing details, is an action for the conversion of the sum of $ 1,025, alleged by the plaintiff, Nettie Heiszler, to have been paid by her to one W. E. Beddow, deceased (the administratrix of whose estate is made a party defendant herein), for the purpose of being applied towards the payment of a certain mortgage note. The answer is in effect a general denial. The court instructed the jury that "the only issue to be decided is as to whether the plaintiff, when she paid the said sum of $ 1,025 to the deceased, directed that it should be applied to the payment of said note," and that "the verdict of the jury must be for the full amount sued for, or for nothing." He also instructed the jury that "all evidence in this case relative to whether or not there was a lease between the plaintiff and her then husband, and this defendant, and all the evidence of financial transactions by the plaintiff with other persons, has been received solely for the purpose of aiding you in determining the relationship of the parties in a business way to each other, the credibility of the parties, and as bearing upon whether the plaintiff, at the time of the payment of said money, directed the application thereof to be made by the defendant upon the note and mortgage aforesaid." A verdict and judgment was returned and entered for the plaintiff for the full amount, and defendant appeals.
In appellant's abstract, and in the form of an exception to one of the instructions of the court, there is a claim by defendant's counsel "that at least the sum of $ 140 has been paid on the note, inasmuch as certain testimony is in the case relative to the authorization by the defendant of the payment of that amount by the bank of Caledonia," and in another exception is found the statement that "there was a contract of hiring between the plaintiff and her then husband and the defendant in the spring of 1905, whereby the plaintiff and her husband farmed certain land of the defendant, and for their services were to receive a portion of the crop produced upon said land, which portion should be delivered to the defendant in an elevator at Berlin, but the plaintiff and her husband should care for and preserve said crops until divided and delivered, and until such time title, ownership, and right to possession of the whole should remain in the defendant; that such crops were never divided, nor delivered to the defendant, and that plaintiff, without the knowledge and consent of the defendant, sold and otherwise disposed of said crops and converted the proceeds to her own possession, and that said payment of $ 1,025 to the defendant by the plaintiff was part of the proceeds as received from said crops." It is also alleged in the...
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