Lamoreaux v. Randall

• Decision Date: 25 February 1926
• Citation: 208 N.W. 104,53 N.D. 697
• Court: North Dakota Supreme Court

208 N.W. 104

53 N.D. 697

CHRIS LAMOREAUX, Respondent, v. JOHN F. RANDALL, as Sheriff of Benson County, North Dakota, Appellant

Supreme Court of North Dakota

February 25, 1926

Appeal from the District Court of Benson County, Burr, J.

Reversed.

Judgment reversed and a new trial ordered.

Sinness Duffy & Wheeler, for appellant.

"It is now so well settled that the gratuitous contribution of a husband's time and skill to the management of his wife's property creates no title to its profits or increase in him that the question is no longer debatable." Olson v. O'Connor, 9 N.D. 511.

"Where the wife sets up a secret contract between herself and her husband, it is improper to charge that contracts made and debts incurred between husband and wife were legal. 'The only difference is that the law requires it should perhaps be looked into a little more closely.'" 27 C. J. 644 note 79D; citing Skellie v. James, 81 Ga. 419, 8 S.E. 607.

"The court should carefully scrutinize all cases of alleged fraud against creditors, wherein the members of the family of the debtor make claim to important or valuable interests as against creditors." 12 R. C. L. 488, 489.

"Transactions between husband and wife to the prejudice of the husband's creditors will be viewed with suspicion and closely scrutinized to see that they are fair and honest and not mere contrivances resorted to for the purpose of placing the husband's property beyond the reach of creditors." 27 C. J. 643.

"The reason for this is that the intimate relationship of the parties affords a convenient cover for transactions designed to screen property from creditors." 27 C. J. 644, note 79A.

"The measure of damages for the entire destruction of a growing crop is its value at the time and place of destruction. A similar rule applies in case of the destruction of a matured crop. . . . According to the great weight of authority the amount of loss must be determined as of the time of the injury." Huether v. McCaull-Dinsmore Co. (N.D.) 204 N.W. 614.

"The net loss is all that can be recovered, viz.: the market value of the crop alleged to be lost, over the cost of producing harvesting, and marketing." Shotwell v. Dodge, 8 Wash. 337, 36 P. 254; Smith v. Hicks, 14 N. M. 560, 19 L.R.A.(N.S.) 938; Smith v. Chicago etc. R. Co., 38 Iowa 518.

N. J. Bothne and W. G. McDonald, for respondent.

"In an action to recover for the conversion of wheat, the defendant is not entitled to prove the value of his own labor in harvesting and threshing the crop, for the purpose of reducing the damages."

"The general rule in trover is, that the measure of the plaintiff's damages is the value of the property at the time of conversion, without any deduction for labor voluntarily bestowed upon it by the wrongdoer."

"Where possession is unlawfully or fraudulently obtained and the trees or soil severed from the premises and converted by the tenant, the title remains in the owner, and he may recover its value as enhanced by the labor of the wrongdoer." Evans v. Kohn (Minn.) 128 N.W. 1006.

JOHNSON, J. CHRISTIANSON, Ch. J., and BURKE, BIRDZELL, and NUESSLE, JJ., concur.

OPINION

JOHNSON, J.

In 1923 the wife of this plaintiff executed a promissory note to Garnaas Brothers; also a chattel mortgage securing the same. Default having occurred, Garnaas Brothers brought suit and recovered judgment on the note and for a foreclosure of the mortgage. Execution apparently was issued on the judgment and returned unsatisfied. These proceedings seem to have taken place in the fall of 1923.

On August 28, 1924, execution on the judgment aforesaid was again in the hands of defendant, the sheriff of Benson county, who levied on and seized a quantity of wheat and oats. The grain had been cut and was standing in the shock at the time of the levy. Soon thereafter the defendant as sheriff, arranged for the threshing of the grain, hauled it to market and sold it. On September 2, 1924, the plaintiff served on the defendant a notice of claim of exemption, reciting therein that "as husband" of the judgment debtor, and head of the family, he claimed all the grain seized as exempt, under the statutes of this State. On September 4, 1924, the plaintiff served on the defendant a third party claim to the property which the latter had seized. Plaintiff therein asserted that he farmed the land on which the grain was raised under an agreement with his wife, the judgment debtor and the owner of the land; and that he was entitled to three fourths of the crop under the lease. The sheriff ignored both claims, and threshed and disposed of the grain as heretofore stated.

The plaintiff thereupon brought action in conversion against the sheriff on the theory that the former had leased the land from his wife, and that under the lease he was owner and entitled to the possession of three fourths of the crop. The plaintiff does not ask for a return of the grain, but demands judgment for the "highest market value of the property so converted, between the time of such conversion and the verdict herein." The jury returned a verdict for the plaintiff upon the basis of the highest market value of wheat between the date of the alleged conversion and the trial of the action.

The defendant moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. The grounds of the motion, briefly stated, were: the insufficiency of the evidence to support the verdict; errors in admitting or excluding evidence; and misdirection of the jury. The trial court denied the motion and judgment was entered accordingly. The defendant appeals from the order denying the motion and from the judgment, specifying the same errors on which he relied in the trial court.

One of the alleged errors urged by the appellant, is that the court misdirected the jury upon the measure of damages. The position of the defendant at the trial was, and in this court is, that in no event was the plaintiff entitled to the highest market value of the grain as threshed; that if entitled to recover anything, it was the actual value of the property at the time it was seized, that is, of the grain in the shock; and that the sheriff should have been permitted to prove the reasonable and necessary expenses incurred in threshing the grain and delivering the same at the market. The court took a contrary view and ruled upon the evidence and instructed the jury accordingly. The following instruction, specified as erroneous, fairly presents the view of the trial court on this point: "The plaintiff is also required to prove the value of the property taken. The property when seized was not threshed. The plaintiff has the right in this case, if you find he is entitled to any portion of the crop, to have the value placed at the highest market price between the 4th day of September and the present time. This means the highest market value of the property seized. Wheat and oats have well defined market values and the testimony introduced shows that the highest market value for wheat, since the time the sheriff took the grain, was $ 1.70 per bushel; and the highest market value of the oats for the same time, was 43 cents. This is the value of the grain after it is threshed and marketed, at the primary markets." The court then told the jury that the plaintiff could recover if he had established the fact that he leased the land in good faith from his wife.

The theory of the trial court, as it appears in the memorandum opinion, was that the sheriff took the grain unlawfully, over the protest of the plaintiff, in defiance of his rights, and, therefore, at defendant's own risk. The trial court was of the opinion that the sheriff was a trespasser and that the "amount recoverable depended on the innocency of the defendant." The court then says: "Where one adds value to chattels by his own labor and expenditures and does this 'with knowledge of the owner's rights, and in defiance thereof' this value will be recoverable by the plaintiff. In the case at bar, defendant had knowledge of the plaintiff's rights. He acted in defiance thereof." The court cites 38 Cyc. 2099 in support of this conclusion.

Section 7168, Comp. Laws 1913, defines the measure of damages for conversion of personal property, as "the value of the property at the time of the conversion with interest from that time; or, when the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict without interest, at the option of the injured party; and, a fair compensation for the time and money properly expended in pursuit of the property." See Huether v. McCaull-Dinsmore Co., 52 N.D. 721, 204 N.W. 614.

Section 7165, Comp. Laws 1913, prescribes the measure of damages for wrongs to be "the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." Section 7145, Comp. Laws 1913, dealing with the subject of exemplary damages, provides that in a tort action, "when the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant." In Lindblom v. Sonstelie, 10 N.D. 140, 86 N.W. 357, this court held that the jury should be instructed that exemplary damages may be assessed only when oppression, fraud or malice exists.

In the case at bar, the court permitted the plaintiff to recover the highest market value of the wheat and the oats at the primary market in Benson county, without any allowance whatever to the defendant for threshing the crop or hauling the grain to market. In other words, the expenses of threshing the grain certainly essential to...