Lloyd v. Powers

• Decision Date: 16 February 1883
• Citation: 22 N.W. 492,4 Dakota 62
• Parties: Lloyd v. Powers and others.
• Court: North Dakota Supreme Court

22 N.W. 492

4 Dakota 62

Lloyd v. Powers and others.

Supreme Court of Territory of Dakota

February 16, 1883

Appeal from third judicial district, Stutsman county.

HUDSON J., dissenting.

Mr Nickens, for appellants. Mr. Dodge, for respondents.

CHURCH J.

The record in this case is so meager and defective, and the papers constituting the judgment roll are of so unusual a character, that it is difficult to treat the case in such a manner as to be intelligible to those not familiar with it without transcribing the entire record, with the opinion of the court, and even then much would have to be left to inferences, drawn from the briefs of counsel. Inasmuch therefore, as the case involves no important questions of general interest, we shall dispose of it very briefly. The first question raised is as to whether the writ is properly brought in the name of this plaintiff. We think it is. The transactions had their origin in a written contract between defendant Powers, as party of the first part, and "William M. Lloyd, agent for the real estate hereinafter described, party of the second part," by which Powers agreed to work the land for a share of the crops, and it is for the conversion of some of these crops that the action is brought. The contract is executed on behalf of the party of the second part, as follows: "J. W. GODRICH, Ag't for W. M. Lloyd." Manifestly, therefore, Lloyd was the proper party to sue.

As to the construction of the contract, we think the parties have entirely misapprehended this instrument, and in their discussion of it have overlooked that portion which plainly and clearly provides for determining the question of title as between Powers and Lloyd. What is said on this subject in the fourth paragraph of the contract (as printed) prohibits removal until division, and declares that until division title and possession shall remain in Lloyd. In the fifth paragraph, however, which, so far as we have observed, is entirely unnoticed by counsel, it is provided that, "in consideration of the faithful performance of all the stipulations by Powers, Lloyd agrees, upon reasonable request thereafter made, to give and deliver on said farm half of all grains and vegetables so raised and secured." How this provision came to be disregarded we are unable to comprehend; but, taken in connection with the rest of the contract, it clearly defines the intention of the parties to be, that, after the crops were gathered and threshed, it was to be ascertained and determined whether Powers had fulfilled his agreement, which, of course, must be done in the first instance by Lloyd, and, this being determined in the affirmative, thereafter, upon request, Lloyd was to deliver to Powers his share, one-half, of the crops. It would seem entirely manifest, therefore, that until such delivery--that is, until some act by Lloyd or his agent from which a delivery could be legally inferred--no title would pass to Powers, nor any right of possession. No matter how unreasonably Lloyd might refuse to deliver in compliance with the contract, Powers' only remedy would be by proper action; and if this were the whole of the contract, a substantially complete performance of his contract in all respects would be necessary to entitle Powers to demand his share, or any part of it.

The next paragraph, however, provides that two and one-half bushels of wheat per acre shall be held by Lloyd as security for the plowing back by Powers, as thereinbefore agreed, of so much land as shall remain unplowed. When is not stated, but we must assume that this relates to the time of division and delivery of the balance of Powers' share; so that it seems that, as security for the performance of this particular part of his agreement by Powers, Lloyd was to "hold"--that is to say, "hold back," withhold, "retain"--two and one-half bushels for every acre remaining unplowed; the contract thus creating or providing for a lien on so much of Powers' share for that purpose.

Third. Whence arises the alleged conversion? Here the record leaves us very much in the dark. The complaint is short, and substantially in the usual form. The defendants, Powers and Bush & Corwin, answer separately, setting up in a manner at once needlessly particular, and yet wholly indefinite certain matters supposed to constitute a defense, which would have been better covered...