Leuthold v. Fairchild

• Decision Date: 31 March 1886
• Parties: LEUTHOLD AND OTHERS v FAIRCHILD AND OTHERS.
• Court: Minnesota Supreme Court

35 Minn. 99

27 N.W. 503

LEUTHOLD AND OTHERSvFAIRCHILD AND OTHERS.

Supreme Court of Minnesota.

Filed March 31, 1886.

Appeal from a judgment of the district court, Dodge county.

Taylor & Moses and Robert Taylor, for respondents, Jacob Leuthold and others.

Chas. C. Willson, for appellants, E. E. Fairchild and others.

GILFILLAN, C. J.

After the issues were made in this case the plaintiffs procured, on motion, from the court below, an order requiring the defendant Fairchild to make answer to certain written interrogatories prepared by plaintiffs for that purpose. The making of this order is alleged as error. The interrogatories were answered, but no use was made of the answers,-they were not introduced on the trial; so that, as that proceeding did not in any way affect the judgment appealed from, the error was without prejudice so far as concerned this appeal. We deem it proper, however, to say that there is no authority for such an order. The statute enables a party, by verifying his own pleading, to compel his adversary to answer or reply to it under oath, and to compel him to exhibit for inspection books, papers, and documents in his possession, and also to appear and testify in his behalf as a witness. These are the only means that the statute has provided to compel disclosures by the opposite party in lieu of the means which the system of pleading in the former court of chancery afforded by interrogatories appended to the bill or answer.

As to the merits, the facts, briefly stated, are: Up to June 2, 1883, one John Young owned a grain warehouse or elevator, at Kasson, and was engaged in the business of receiving into it, for storing, wheat of all grades from others, for which, as received, he issued to the parties depositing wheat the usual wheat warehouse receipts or tickets; and was also engaged in buying wheat on his own account,-all the wheat so deposited by others, and that bought by him, being commingled in the warehouse according to its grade, test, and condition; and he also bought up, as he had opportunity, the receipts or tickets so issued by him; that for some time prior to said June 2d he was accustomed to ship by railroad to market, at Chicago, and there to sell, the wheat in his warehouse, and so commingled, both that owned by himself and that held in store for others. The business of shipping it was conducted in this way: He placed the wheat on board the cars at Kasson; received from the railway company the usual bills of lading for it, in which the defendant the bank was named as consignee; drew his drafts for round sums in favor of the bank on the parties to whom the wheat so shipped was to be forwarded; procured the bank to discount the drafts, delivering them to it with the bills of lading. The bank thereupon, by defendant Fairchild, its cashier, indorsed the bills of lading in blank, indorsed the draft to its correspondent at the place of destination of the wheat, and forwarded the bills and drafts attached together to such correspondent, with instructions to present the drafts for payment, and, if paid, to deliver them with the bills to the drawee in the drafts; and it was so done. The bank, through its officers, had, at all times, knowledge that Young was receiving wheat for storing and issuing receipts or tickets therefor, and mingling such wheat with that purchased by himself; but had no actual knowledge or notice of the actual condition of the storage accounts, or of the amount of the outstanding receipts or tickets, or of the amount of wheat in the elevator, or of the financial condition of Young.

Each of the plaintiffs had deposited wheat for storing in said warehouse, and received receipts or tickets therefor. After such deposits, so much wheat was taken out, shipped, and disposed of in the manner aforesaid, that on said second day of June there was not enough remaining to meet all such receipts or tickets outstanding and held by the plaintiffs and others than Young on that day. Young was insolvent, and made an assignment for the benefit of his creditors to defendant Fairchild, who accepted the trust, and took possession of the warehouse, and all the wheat remaining in it. Afterwards each of the plaintiffs presented to Fairchild his receipts or tickets for wheat, and demanded from him the amount and quality of wheat called for by them, at the same time tendering the amount due thereon for storage; and without taking any exception to the form or manner of such demands, he refused to comply with them. During the times aforesaid one John Fern was the agent and wheat inspector of Young, and assisted him in operating said elevator, and managing the business thereof, and in all the foregoing transactions.

On these facts (stated much more in detail in the findings of the court) the court below found as conclusion of law-First, that the refusal of Fairchild to deliver, on the demands made upon him, the part of the wheat then in his possession, to which each of the receipts or tickets presented to him was entitled, amounted to a conversion thereof; second, that the acts of Fairchild, the bank, Young, and Fern, in the matter of shipping and disposing of the wheat as hereinbefore recited, amounted to a conversion by them of so much of said wheat as was required to meet the outstanding receipts or tickets, after applying the wheat on hand to that purpose; third, and that the bank and Fern, each of whom had receipts or tickets for wheat deposited, were not entitled to share in the wheat on hand.

The first of these conclusions is right. The objection made...