Hochstetler v. Graber

• Decision Date: 15 May 1951
• Docket Number: No. 7172,7172
• Citation: 48 N.W.2d 15,78 N.D. 90
• Parties: HOCHSTETLER v. GRABER et al.
• Court: North Dakota Supreme Court

Page 15

48 N.W.2d 15

78 N.D. 90

HOCHSTETLER v. GRABER et al.

No. 7172.

Supreme Court of North Dakota.

May 15, 1951.

Syllabus by the Court

1. Whether a new trial shall be granted upon the ground of insufficiency of the evidence or newly discovered evidence rests largely within the sound judicial discretion of the trial court, and unless an abuse of that discretion is shown, the action of the trial court will not be disturbed on appeal.

2. When a verdict is attacked in this court on the ground of insufficiency of the evidence and the evidence, though conflicting, is legally sufficient to sustain the verdict under the instructions of the trial court, the verdict and judgment will not be disturbed.

3. It is a general rule that the wrongful sale of personal property in which another has an interest renders the seller liable for conversion of that interest.

4. Demand and refusal may be evidence of conversion but are not necessary to constitute a conversion, and where a demand would be unavailing, none need be made.

5. Accord and satisfaction is an affirmative defense and the burden of proof to establish it is upon the party who seeks to rely thereon.

6. Where the evidence with respect to the facts is conflicting, the question whether or not there has been an accord and satisfaction is for the jury.

7. Where the actual intention with which an act is done is material, a party may usually give direct testimony as to his intention. But he may not testify to his 'understanding' as to the result of a transaction which implies a concept that partakes of a conclusion.

8. The record is examined in the light of appellant's specifications of error, and it is held, for reasons stated in the opinion, that the trial court committed no prejudicial error against the defendants in rulings on the admission or exclusion of evidence.

9. A motion for a new trial based upon the ground of newly discovered evidence material to the party making the application, which could not with reasonable diligence have been discovered and produced at the trial, is addressed primarily to the sound judicial discretion of the trial court.

Stormon & Stormon, Rolla, for plaintiff and respondent.

Benson & Swanson, Bottineau, for defendants and appellants.

MORRIS, Chief Justice.

This is an action for the conversion of grain. A judgment was entered in favor of the plaintiff and against the three defendants, pursuant to a verdict of a jury, for the sum of $5347.57 damages and costs. The complaint alleges that: 'That by virtue of an oral agreement made on or about the month of October, 1946, at Rolette County, North Dakota, by and between the plaintiff and the defendants for the farming of hereinafter described lands during the 1947 farming season and to be performed within one year, and the due performance of his part of said agreement by the plaintiff, the plaintiff became the owner of an undivided one-sixth right, title, and interest in and to all grain grown, harvested, and threshed on said lands, to-wit: The NE 1/4 and SW 1/4 of Section 17, the SE 1/4 of Section 18, the S 1/2 SW 1/4 and N 1/2 NW 1/4 and N 1/2 NE 1/4 of Section 20, the SW 1/4 of Section 21, and the N 1/2 NW 1/4 of Section 29, Township 160 North, of Range 70 West of the 5th P. M.; and the S 1/2 NW 1/4 and N 1/2 SW 1/4 of Section 25, and the SE 1/4 NW 1/4 and SW 1/4 NE 1/4 and NE 1/4 SW 1/4 and NW 1/4 SE 1/4 of Section 35, in Township 161 North, of Range 70 West of the 5th P. M.; and the West Half of Section 1 and 240 acres in Section 6, in Township 159 North, of Range 70 West of the 5th P. M., and all other lands of the defendants situated in Rolette County, North Dakota.' The answer admits this paragraph of the complaint. The complaint further alleges that demand has been made upon the defendants for the delivery of the one-sixth part of the grain covered by the oral agreement pleaded above and that delivery was refused. It is then alleged that on or about October 2, 1947, the defendants, being in possession of the grain, unlawfully converted the same to their own use to the damage to the plaintiff in the sum of $10,000. The defendants plead two defenses. They deny that the plaintiff ever demanded delivery of the grain in question or that they converted it. The second defense is that of accord and satisfaction. In support of this the defendants allege that on or about October 2, 1947, the amount to which the plaintiff was entitled as his share of the grain was in dispute and that there was a further dispute as to when the 1947 crop would be sold or divided and that in settlement of this dispute it was mutually agreed between the plaintiff and the defendant, Levi Graber, that the plaintiff would sell and transfer to that defendant all of the plaintiff's right, title, and interest in the crop for a cash payment of $2500, which was paid to and accepted by the plaintiff in full settlement and in accord and satisfaction of all his claims to the grain in dispute.

After verdict and judgment for the plaintiff, defendants moved for a new trial, the grounds for which fall into three major groups. They contend that the verdict is not supported by the evidence and was given under passion and prejudice; that certain specified errors occurred at the trial require that a new trial be granted; and that the defendants have discovered new evidence that is material to the defense and could not with reasonable diligence have been discovered and produced at the trial. The trial court denied defendants' motion whereupon they appealed from both the judgment and from the order denying the motion for new trial.

The pleadings establish that by virtue of an oral agreement between the plaintiff on the one hand and the defendants on the other, the plaintiff because the owner of an undivided one-sixth interest in all grain produced in 1947 upon the heretofore described lands.

We will first consider the defendants' challenge to the sufficiency of the evidence to sustain the verdict. This court has many times, and in different ways, stated the rule that whether a new trial shall be granted rests largely within the sound judicial discretion of the trial court, and unless an abuse of that discretion is shown the action of the trial court will not be disturbed on appeal. Among our more recent cases supporting this rule are State v. Hummel, 73 N.D. 308, 14 N.W.2d 368; Haslam v. Babcock, 71 N.D. 363, 1 N.W.2d 335; and Froh v. Hein, N.D., 39 N.W.2d 11. The trial court considered the sufficiency of the evidence and, in denying a new trial, confirmed the verdict of the jury. When the verdict is attacked in this court and the evidence, though conflicting, is legally sufficient to sustain the verdict under the instructions of the trial court, the verdict and judgment will not be disturbed. Haslam v. Babcock, supra; Griffin v. Implement Dealers' Mutual Fire Ins. Co., 64 N.D. 146, 250 N.W. 780; Rickel v. Sherman, 34 N.D. 298, 158 N.W. 266; Branthover v. Monarch Elevator Co., 42 N.D. 330, 173 N.W. 455; Hampton v. Ross, 56 N.D. 423, 217 N.W. 845; Kraft v. Martell, 58 N.D. 58, 225 N.W. 79. The defendants argue that the evidence is not sufficient to support a finding by the jury that the defendants converted grain belonging to the plaintiff. It is asserted that the evidence fails to show a demand by the plaintiff upon the defendants for the grain in question. The evidence on this point is conflicting. The plaintiff testified that he demanded a division of the grain on two occasions, the first in the latter part of September, 1947, and the second in November of the same year. The defendants deny this. The trial court did not submit to the jury in his instructions the issue of whether or not a demand was made. No request was made for an instruction on this point. The defendants openly claimed and exercised dominion over all of the grain, including the plaintiff's share, from and after October 1, 1947. On that date they contend that the plaintiff relinquished all claim to the grain by virtue of an accord and satisfaction, which we will discuss in detail later in this opinion. By far the greater portion of the grain in value was hauled to elevators, sold by the Grabers, and the proceeds received and retained by them. While plaintiff's counsel was interrogating a witness regarding these transactions, defendants' counsel stated: 'If the Court please, if it would facilitate matters the defendant would be willing to stipulate that any grain from the 1947 crop that the proceeds were paid to the Grabers and none to the plaintiff Hochstetler.' Plaintiff's counsel then said: 'And that it is in the control of the defendants?' To which the defendants' counsel replied: 'Yes.'

As a general rule the wrongful sale of personal property in which another has an interest renders the seller liable for the conversion of that interest. Nesvold v. Gerding, 49 N.D. 207, 190 N.W. 815; 53 Am.Jur., Trover and Conversion, Section 35; 15 Am.Jur., Crops, Section 66; 14 Am.Jur., Cotenancy, Section 71. The grain not sold to elevators was taken into possession by the Grabers to the exclusion of the plaintiff, and they at all times after October 1, 1947, asserted that the plaintiff had no right or interest therein. 'That a tenant in common may maintain an action against a co-tenant to recover the value of a joint interest in personal property, to the actual possession of which he is entitled, at a time when his rights of ownership and possession are denied and ignored in a manner which deprives him of the possibility of any enjoyment thereof or benefit therefrom, is supported by both reason and authority.' Wood v. Steinau, 9 S.D. 110, 68 N.W. 160, 162. See also Tuttle v. Campbell, 74 Mich. 652, 42 N.W. 384.

Demand and refusal may be evidence of conversion, but are not necessary to constitute a conversion, and where a demand would be unavailing, none need be made. 'A demand followed by a refusal to deliver property is only evidence of a...