McFadden v. Thorpe Elevator Company
| Decision Date | 30 October 1908 |
| Citation | 118 N.W. 242,18 N.D. 93 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina county; Kneeshaw, J.
Action by A. J. McFadden against Thorpe Elevator Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Guy C H. Corliss, for appellant.
An election of remedy, with full knowledge of the facts, is binding. Birdsell Mfg. Co. v. Oglevee, 58 N.E. 231; Harding v. Atlantic Trust Co., 67 P. 222; Thomas v. Watt, 62 N.W. 345; McDonald v. Bank, 70 N.W 143; Wright & Co. v. Robinson, 82 N.W. 632; Terry v. Munger, 24 N.E. 272; Braithwaite v. Aikin 3 N.D. 365, 56 N.W. 133.
Where in a farm contract, title is held as security, the transaction is a chattel mortgage. McNeil v. Ryder, 81 N.W. 830; Agne v. Skewis-Moen Co., 107 N.W. 415.
Purchaser of property, if buyer is innocent, is not a conversion, and demand before suit is necessary. Plano Mfg. Co. v. N. P. El. Co. 53 N.W. 202; Hovey v. Bromley, 85 Hun. 540; Metcalfe v. Dickman, 43 Ill.App. 284; Valentine v. Duff, 7 Ind.App. 196; Dean v. Cushman, 94 Me. 454.
M. Brynjolfson and Jeff M. Myers, for respondents.
Adopting by mistake a falacious or illusory remedy does not preclude following any other that is open. In Re. VanNorman, 43 N.W. 334; McLaughlin v. Austin, 62 N.W. 719; Smith v. Bricker, 53 N.W. 250; Bunch v. Grave, 12 N.E. 514; City of Omaha v. Redick, 85 N.W. 46; Fuller Co. v. Harter, 85 N.W. 698; Snow v. Alley, 30 N.E. 691; Agar v. Winslow, 56 P. 422.
Under the usual farm contract reserving title to secure performance, the renter acquires no title until the fulfilment of its conditions undertaken by him. Angell v. Egger, 6 N.D. 391, 71 N.W. 547; Bidgood v. Monarch El. Co. 9 N.D. 627, 84 N.W. 561; Hawk v. Konouzki, 10 N.D. 37, 84 N.W. 563; Consolidated Land Co. v. Hawley, 63 N.W. 904; Savings Bank v. Canfield, 81 N.W. 630.
Chattel mortgage does not attach to renter's interest until such fulfillment. Bidgood v. Monarch El. Co. supra; Hawk v. Konouzki, supra; Savings Bank v. Canfield, supra.
The demand was sufficient. 28 Am. & Eng. Enc. (2nd Ed.) 708.
Demand from a distance by letter unanswered, is sufficient. First National Bank of Fargo v. Minneapolis & N. El. Co. 11 N.D. 280, 91 N.W. 436.
This action was brought in the district court of Pembina county to recover damages for the alleged conversion of certain wheat. A jury was waived, and the plaintiff recovered judgment in the court below, from which judgment this appeal is prosecuted. The grain in question was raised by one Alke upon plaintiff's land during the season of 1905, under the ordinary farm contract entered into on March 17, 1903, and covering that and the two succeeding years. The usual provision is in said contract reserving title to all crops in the landlord until the division thereof, the tenant to receive one-half of such crops upon the faithful and diligent performance by him of all the stipulations of the contract. The record discloses that on February 28, 1905, Alke executed and delivered to plaintiff a chattel mortgage upon his "undivided one-half interest in all crops of every name, nature, and description, which have been or may be sown, grown, planted, cultivated, or harvested during the year 1905, and until said debt is paid on the following described real estate" (describing same) to secure the payment of a certain promissory note dated on said day for the sum of $ 1,143.35. In his original complaint plaintiff based his right of recovery upon this chattel mortgage, but subsequently, by leave of court and by consent of defendant's counsel, the complaint was amended so as to base the right of recovery under the farm contract upon which amended complaint the action was tried. The receipt by defendant of the wheat involved in this litigation is conceded, but whether defendant converted the same, and whether plaintiff can maintain the action under his amended complaint, are the controverted questions in the case.
It is appellant's contention that plaintiff, by taking and accepting the chattel mortgage from Alke, thereby necessarily waived his right under the farm contract to retain the legal title to all crops in him. In other words, it is contended that, by accepting such chattel mortgage, plaintiff definitely decided that he would treat the grain as the property of Alke, and rely wholly upon the chattel mortgage for his security. Appellant's counsel says: Appellant's contention, broadly stated, leads to the inevitable conclusion that a landlord cannot retain title to his tenant's part of the crops under a stipulation like the one in the contract in question, and at the same time or subsequently take security from his tenant by means of a chattel mortgage upon such property, and that his act in taking the chattel mortgage under such facts must be deemed conclusive evidence of a waiver by him of the legal title thus reserved. Our attention has been called to no adjudicated case supporting such contention, and we know of no such authority. As we view the question, there is no necessary inconsistency between the relations of the parties as created by the contract, and those created by the chattel mortgage. It is, of course, true that the title to the grain cannot rest in both the landlord and tenant at the same time. Under the contract the title, until a division, is retained by the landlord, but this is not an absolute unqualified title. On the contrary, the title, in so far as the tenant's undivided part of the crop is concerned, is in the nature of a security; the tenant having a contingent equitable interest therein which ultimately will ripen into a perfect title upon his compliance with the contract and a division of the grain. It is, of course, clear that, until he acquires the title under the contract, his mortgage cannot attach, and the same merely amounts to a contract for a lien, and we know of no reason why such a contract for a lien may not be given by the tenant and accepted by the landlord to take effect at such time in the future as the mortgagor may ultimately acquire title to his part of the crops under the terms of the contract. Such no doubt was the obvious intent of the parties, for the landlord continued thereafter to make advances to the tenant without any security other than that afforded him by the terms of the farm contract. It may be that the landlord, if he saw fit, could waive the provisions as to security which were contained in the contract, but there is no evidence that he intended to do so, and the court will not presume such intent, in the absence of any evidence aside from the mere accepting of the so-called chattel mortgage.
As before stated, in plaintiff's original complaint he sought to recover upon the ground of his special property by virtue of the chattel mortgage. Subsequently he was permitted to amend by abandoning such theory, and in his amended complaint he alleges ownership of the grain by virtue of the farm contract, and it is appellant's contention that plaintiff, by his first complaint elected to rely upon the mortgage, instead of title under the farm contract, and is now precluded from changing his position. Counsel's contention, as we understand it, is, in effect, that the theory upon which he framed his original complaint furnishes conclusive evidence that plaintiff thereby waived his technical legal title under the contract. This for the reason that his attempt to assert rights under the chattel mortgage was inconsistent with his retention of his legal title under the contract. There would be some force to appellant's contention if at the date of the commencement of the action plaintiff had...
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