Herrmann v. Minnekota Elevator Company, a Corporation
| Citation | 145 N.W. 821,27 N.D. 235 |
| Decision Date | 11 February 1914 |
| Court | North Dakota Supreme Court |
Rehearing denied March 2, 1914.
Appealed from the County Court of Benson County, Liles, J.
Reversed.
Judgment reversed.
F. B Lambert, for appellant.
Statements made by outside, disinterested parties are wholly incompetent and immaterial; to make a person a party to an action service of the summons upon him is necessary. Bunker v. Taylor, 10 S.D. 526, 74 N.W. 450.
Tetrault was a hold over under the old lease, and the rights of the parties are fixed and controlled by such lease. Wadsworth v. Owens, 21 N.D. 255, 130 N.W. 932.
The grain had never been divided so as to change the vested title. Angell v. Egger, 6 N.D. 391, 71 N.W. 547; Smith v. Atkins, 18 Vt. 461; Esdon v. Colburn, 28 Vt. 632, 67 Am. Dec. 730; Andrew v. Newcomb, 32 N.Y. 417; Consolidated Land & Irrig. Co. v. Hawley, 7 S.D. 229, 63 N.W. 904; Moulton v. Robinson, 27 N.H. 550; Lewis v. Lyman, 22 Pick. 437; Howell v. Foster, 65 Cal. 169, 3 P. 647; Griswold v. Cook, 46 Conn. 198; Taylor v. Bradley, 39 N.Y. 129, 100 Am. Dec. 415; Lloyd v. Powers, 4 Dak. 62, 22 N.W. 492; Meacham v. Herndon, 86 Tenn. 366, 6 S.W. 741; Bidgood v. Monarch Elevator Co. 9 N.D. 627, 81 Am. St. Rep. 604, 84 N.W. 561; Simmons v. McConville, 19 N.D. 787, 125 N.W. 304; Wadsworth v. Owens, 21 N.D. 255, 130 N.W. 932.
The title to the grain under the contract in this case remained in the owner of the land until an actual division of the grain. Walton v. Mattson, 22 N.D. 532, 135 N.W. 176.
Demand and refusal are necessary in all trover cases, where defendant is rightfully in possession. 38 Cyc. 2032, note 75; cases from Ala.; Ark.; Colo.; Conn.; Ga.; Ill.; Ind.; Iowa; Kan.; Ky.; Me.; Mass.; Mo.; N. J.; N. Y.; N. C.; Ohio; Pa.; Tenn.; Wis.; U.S.; Eng. and Canada. Smith v. Smalley, 19 A.D. 519, 46 N.Y.S. 279; Sanford v. Duluth & D. Elevator Co. 2 N.D. 6, 48 N.W. 434; Shinn, Replevin, § 295, and cases cited in note 2; 38 Cyc. 2068, citing cases from Ala.; Cal.; Ind.; Ind. Terr.; Iowa; Mass.; Mich.; Mo.; Mont.; Neb.; N. Y.; N. C.; N. D.; Or.; S. D.; Wis.; U.S.; Kan.; R. I.; Citizens Nat. Bank v. Osborne-McMillan Elevator Co. 21 N.D. 335, 131 N.W. 266.
Flynn & Traynor, for respondent.
The bank is estopped to claim a superior title to Tetrault's half of the grain, over plaintiff's mortgage, because of the representations of Edwards to Hermann the preceding winter, to the effect that Hermann's mortgage thereon was a first mortgage--and there followed an actual division of the grain. The tenant is the absolute owner of the crop unless title is reserved in the owner of the land. 24 Cyc. 1067.
If the landowner retains title, he can pass it to the tenant, even though the tenant has failed to perform the contract. Lallier v. Pacific Elevator Co. 25 S.D. 572, 127 N.W. 558.
If the acts in themselves constitute a conversion, no demand is necessary. Taugher v. Northern P. R. Co. 21 N.D. 111, 129 N.W. 750; More v. Burger, 15 N.D. 345, 107 N.W. 200.
Especially is no demand necessary where it would be unavailing. Hahn v. Sleepy Eye Mill. Co. 21 S.D. 324, 112 N.W. 843; Consolidated Land & Irrig. Co. v. Hawley, 7 S.D. 229, 63 N.W. 904; Willard v. Monarch Elevator Co. 10 N.D. 400, 87 N.W. 996.
In 1908 one Wright owned a quarter section of land in Rolette county, North Dakota, and made a written lease with one Tetrault to farm the same during the years 1908, 9, 10, which lease reserved the title in the landlord to all crops until a division thereof. In August, 1909, Wright sold the land to Dr. Robertson, and he, in October 1910, deeded it to the First National Bank of Rolette, of which he was vice-president and for whom he had previously held the title. During the years 1909 and 1910 the bank assumed the lease with Tetrault, and after a division of the grain turned one half over to said tenant. On November 1, 1910, Tetrault, the tenant, executed a chattel mortgage to the plaintiff herein, Herrmann covering his interest in the 1911 crop upon said land.
Tetrault farmed the land in 1911 without any further written lease, and much of the dispute in this case hinges upon the nature of such lease. The plaintiff contends that a new verbal lease was made for the year 1911, while the defendant maintains that Tetrault held over under the old written lease. The decision of this question is discussed in P 1 of this opinion. When the time for threshing the grain arrived, the same was delivered to the defendant elevator company, a load at a time, and mingled with grains received from other farmers. After the first day's hauling the amount, 458 bushels and 40 pounds, No. 2, wheat was sold at 94 cents per bushel, the check being taken in the name of Dr. Robertson. The second and last day, 494 bushels and 10 pounds of No. 2 wheat was delivered and sold at 92 cents per bushel. Another important question in this lawsuit depends on whether or not there was a division of the grain at the time of the sale, and this proposition is discussed in P 2 of the opinion. The third and last question necessary for a decision of this case is whether or not the bank has been estopped by admissions by its officers, to deny the fact of an oral lease, and also the fact of a division of the grain, and this will be discussed in P 3.
(1) Section 5531, Rev. Codes 1905 provides: "If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time not exceeding one year." It is undisputed that Tetrault farmed the land in 1909 and 1910 under the written lease, and that he continued in possession of the farm during the year 1911, under practically the same terms. The president of the bank testified at the trial that he had full and active management for the bank of this particular tract of land, and personally conducted all negotiations to the same with Tetrault; that in the fall of the year 1910 in a conversation with Tetrault he had stated to him that he could go on farming said land for another year under the same terms and conditions as the old lease, and that pursuant to this conversation the bank had furnished seed, paid one half of the threshing bill, and otherwise conducted itself under the terms of the old written lease. Tetrault did not testify in the case, and the only evidence upon which the plaintiff can rely is some alleged admissions of Dr. Robertson, the vice-president, and Mr. Edwards, president, of the bank, which statements were testified to by the plaintiff himself, and were received in evidence over the objection of the defendant. Herrmann testified that in February, 1911, he noticed Tetrault hauling seed grain out to the place, and went to Edwards and asked him if he was furnishing Tetrault with any grain that had been charged up against his half of the crop for that year, and Edwards had said, "no," after which he told Edwards that Tetrault had told him that there was a verbal lease under which Tetrault was to receive one half of the grain, and that he had taken a mortgage upon that half, and asked him how things stood, and that Edwards had said that there would be nothing charged against the Tetrault interest, and that his mortgage would be a first lien on his half of the crop. Plaintiff also testified that he had a talk with Dr. Robertson just after the grain was sold, in which Robertson had told him that he had instructed the elevator agent to sell every other load for him and leave the other for Tetrault. Upon the question of the nature of the lease, we can see nothing inconsistent with the defendant's claim in the conversation between Edwards and Herrmann, and in view of the positive evidence of Edwards that the 1911 lease was a renewal of the old written lease, we think the undisputed evidence shows such to be the case and the relation of the parties herein to be exactly the same as though this dispute had arisen over the 1910 crop. The conversation with Robertson has nothing to do with this phase of the dispute, and will be treated in P 3. Therefore the court should have instructed that the lease in dispute was a continuation of the written lease of 1908 and 1909, and withdrawn from their consideration the question of a different oral lease.
(2) Plaintiff insists that even if it be conceded that the 1911 lease was a continuation of the old written lease and contained a reservation of title in the...
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