McKindley v. Citizens State Bank of Edgeley
| Decision Date | 15 January 1917 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Ransom County, Allen, J defendant appeals.
Reversed.
Reversed and remanded.
Lawrence & Murphy, for appellant.
The action is one in conversion. The complaint proceeds upon no other theory, but expressly alleges the conversion of the instruments referred to, to the use and benefit of defendant. This is not an action as for a breach of an original contract, and while the forms of action have been largely abolished, the rules of evidence and the measure of damages are very different in the two classes of cases. Phelps D. & P. Co. v. Halsell, 11 Okla. 1, 65 P. 340.
The prayer for relief was for a conversion, and the judgment rendered was in conformity with the prayer, rather than with the allegations and the evidence. Aylesbury Mercantile Co. v. Fitch, 22 Okla. 475, 23 L.R.A.(N.S.) 577, 99 P 1089; Taugher v. Northern P. R. Co. 21 N.D. 111, 129 N.W 750.
"A mere detention of another's chattels which rightfully came into one's possession is not an actual conversion." 38 Cyc. 2008, 2028, and cases cited in note 54.
There are no essential elements of conversion in this case.
"When the relation of the parties is that of debtor and creditor, trover will not lie." Jordan v. Lindsay, 132 Ala. 567, 31 So. 484; Muskegon Boom Co. v. Hendricks, 89 Mich. 172, 50 N.W. 799; Borland v. Stokes, 120 Pa. 278, 14 A. 61.
And where the owner expressly or impliedly assents to, or ratifies, the taking, use, or disposition of his property, he cannot recover for a conversion thereof. 38 Cyc. 2009; Locke v. Reeves, 116 Ala. 590, 22 So. 850; Booker v. Jones, 55 Ala. 266; Sigel-Campion Live Stock Co. v. Holly, 44 Colo. 580, 101 P. 68; Robinson v. Hartridge, 13 Fla. 501; Haynes v. Kettenbach Co. 11 Idaho 73, 81 P. 114; Austin v. McMains, 14 Ind.App. 514, 43 N.E. 141; Doyle v. Burns, 123 Iowa 488, 99 N.W. 195; Wood v. Worthington, 4 J. J. Marsh. 174; Laciano v. Flaspoller, 35 La.Ann. 1191; Lowery v. Lavillebeuvre, 14 La. 55; Hills v. Snell, 104 Mass. 173, 6 Am. Rep. 216; Leonard v. Tidd, 3 Met. 6; Mann v. Lamb, 83 Minn. 14, 85 N.W. 827; Griffin v. Bristle, 39 Minn. 456, 40 N.W. 523; Tousley v. Board of Education, 39 Minn. 419, 40 N.W. 509; Freeman v. Etter, 21 Minn. 2; Chase v. Blaisdell, 4 Minn. 90, Gil. 60; Powers v. Klinzie, 15 Mont. 177, 38 P. 833; Carlson v. Jordan, 4 Neb. (Unof.) 359, 93 N.W. 1130; Hill v. Covell, 1 N.Y. 522; Ransom v. Wetmore, 39 Barb. 104; Gruard v. O'Reilly, 32 Misc. 710, 65 N.Y.S. 511; Martin v. Megargee, 212 Pa. 558, 61 A. 1023; Parker v. Oakley, Tenn. , 57 S.W. 426; Houston, E. & W. T. R. Co. v. Garrison, Tex. Civ. App. , 37 S.W. 971; Downer v. Rowell, 24 Vt. 343; Knapp v. Winchester, 11 Vt. 351; S. A. Woods Mach. Co. v. Woodcock, 43 Wash. 317, 86 P. 570; Wilson v. MacNab, 21 U. C. Q. B. 493; Taugher v. Northern P. R. Co. 21 N.D. 111, 129 N.W. 750; Aylesbury Mercantile Co. v. Fitch, 22 Okla. 475, 23 L.R.A.(N.S.) 574, 99 P. 1089; Smith v. American Nat. Bank, 32 C. C. A. 368, 60 U.S. App. 431, 89 F. 832; Link v. Jarvis, 5 Cal. Unrep. 750, 33 P. 206; McDermott v. Morris Canal & Bkg. Co. 38 N.J.L. 53.
A suit to recover damages on a contract under seal, or to enforce payment of compensation for the exercise of privileges granted by deed, the gravamen being that the defendant has not performed the duties required of him by the sealed instrument, must be covenant, and not case. Jones v. Clark, 45 N.J.L. 437; Treadwell v. Tillis, 108 Ala. 262, 18 So. 886; Whitcomb v. Hungerford, 42 Barb. 177; Central Gas & E. Fixture Co. v. Sheridan, 1 Misc. 386, 22 N.Y.S. 76; Zrskowski v. Mach, 15 Misc. 234, 36 N.Y.S. 421; Link v. Jarvis, 5 Cal. Unrep. 750, 33 P. 207; Borland v. Stokes, 120 Pa. 278, 14 A. 61; Davis v. Thompson, 10 Sadler (Pa.) 563, 14 A. 169; Kinney v. South & North Ala. R. Co. 82 Ala. 368, 3 So. 113; Union Stock Yard & Transit Co. v. Mallory, Son & Z. Co. 157 Ill. 554, 48 Am. St. Rep. 341, 41 N.E. 890; Grant v. Walsh, 36 Wash. 190, 78 P. 787; Frech v. Lewis, 218 Pa. 141, 11 L.R.A. (N.S.) 948, 120 Am. St. Rep. 864, 67 A. 45, 11 Ann. Cas. 547; Hull v. Caldwell, 3 S.D. 451, 54 N.W. 100; Stoneman v. Van Vechten, 46 A.D. 370, 61 N.Y.S. 514.
There can be no judgment in a conversion action unless damages are shown. This is the basis of the action. It is the only reason why this form of action is permitted. 38 Cyc. 3808.
Proof of the value of the land, to which certain documents relate, and which documents, it is alleged, were converted, is no proof of the value of such documents.
He who seeks to recover in trover must prove that he was in actual possession of the chattel converted at the time thereof, or that he had the right to the immediate possession, and if such right depends on a property in the chattel, either general or special, he must also prove such property in himself as a fact. 38 Cyc. 2044.
Demand upon an innocent bailee without notice of a party's ownership is necessary before action. Towne v. St. Anthony & D. Elevator Co. 8 N.D. 200, 77 N.W. 608; Sanford v. Duluth & D. Elevator Co. 2 N.D. 6, 48 N.W. 434; First Nat. Bank v. Minneapolis & N. Elevator Co. 11 N.D. 280, 91 N.W. 436.
A thing of no value is not the subject of conversion. Hefner v. Fidler, 58 W.Va. 159, 3 L.R.A.(N.S.) 140, 112 Am. St. Rep. 961, 52 S.E. 513; Donohue v. Henry, 4 E. D. Smith, 162.
"The mere retention of possession of a certificate of stock belonging to another, which came to the possessor rightfully, does not constitute a conversion of either the stock or certificate." Cummins v. People's Bldg. L. & Sav. Asso. 61 Neb. 728, 86 N.W. 474.
Title to or a right in property must be united with possession or right of possession. 38 Cyc. 2045.
"As trover will not lie for a record, it will not lie for a judgment." 38 Cyc. 2014; Platt v. Potts, 33 N. C. 266, 53 Am. Dec. 412; Cobb v. Cornegay, 28 N. C. 358, 45 Am. Dec. 497, overruling Hudspeth v. Wilson, 13 N. C. (2 Dev. L.) 372, 21 Am. Dec. 344.
Separate causes of action must be separately stated in pleading. Swedish American Nat. Bank v. Dickinson Co. 6 N.D. 222, 49 L.R.A. 285, 69 N.W. 455; Mares v. Wormington, 8 N.D. 329, 79 N.W. 441.
A cause of action in favor of the husband or of the wife alone cannot be joined with one in favor of the husband and wife, nor can actions by the husband and wife in their separate rights be joined. 23 Cyc. 425.
Where a joint suit is brought against a number of defendants, if the evidence shows that one of the parties was not connected with the tort, a verdict of nonsuit as to him is proper. Wiest v. Electric Traction Co. (Wiest v. Philadelphia) 200 Pa. 148, 58 L.R.A. 668, 49 A. 891.
"Where the effect of the transaction is such that the contract is made with the agent, not as agent, but as principal, and as the only principal, the agent alone may sue." 2 Mechem, Agency, § 2027; Hamburg-Bremen F. Ins. Co. v. Lewis, 4 App. D. C. 66; Peppler v. Ratz, 38 Mich. 96; King v. Mackellar, 94 N.Y. 317; Parsons v. Phelan, 134 Mass. 109; Thornton v. Stevenson, Tex. Civ. App. , 31 S.W. 232; Ausk v. Great Northern R. Co. 10 N.D. 215, 86 N.W. 719.
The allegations and the proof must correspond, and the relationship must be preserved. Central R. & Bkg. Co. v. Tucker, 79 Ga. 128, 4 S.E. 5; Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327; Denver & R. G. R. Co. v. Cahill, 8 Colo.App. 158, 45 P. 285; Mann v. Birchard, 40 Vt. 326, 94 Am. Dec. 398; 2 Greenl. Ev. § 210, and cases there cited; Rome R. Co. v. Sullivan, 25 Ga. 228; Woodward v. Northern P. R. Co. 16 N.D. 40, 111 N.W. 627.
Curtis & Curtis (Stearns & Hunter, of counsel), for respondents.
"A defendant in trover whose possession was rightful may always show that he delivered the property to the true owner." 38 Cyc. 2063; 5 Cyc. 173, 174.
Where papers are left with one person by the mutual agreement of those interested, or by one with positive instructions as to delivery, and time is of the essence of the transaction as to delivery, the papers may be returned after the date agreed upon, if the terms are not complied with. Bodwell v. Webster, 13 Pick. 411; Hayden v. Meeks, Ark. , 14 S.W. 864.
In the case of a complete escrow the rule is the same. Hall v. Yaryan, 25 Idaho 470, 138 P. 339; Equity Gaslight Co. v. McKeige, 139 N.Y. 237, 34 N.E. 898.
The finding of the trial court that the papers were sent to the Lisbon Bank as agent cannot be overturned without a showing that it is opposed to a preponderance of the evidence. 2 C. J. 939, § 694; State Bank v. Maier, 34 N.D. 259, 158 N.W. 346.
"A bailment may be defined as a delivery of personalty for some particular purpose or upon mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, or otherwise dealt with according to his instructions." 5 Cyc. 161, 165, 166.
"A tort may be distinguished from a breach of contract in that the right of action in the latter case arises out of the agreement of the parties, whereas the right of action for a tort arises out of a duty fixed by law, and independent of the will of the parties." 28 Am. & Eng. Enc. Law, 2d ed. 255; Lewis v. Hoover, 1 J. J. Marsh. 500, 19 Am. Dec. 120; Packard v. Getman, 4 Wend. 613, 21 Am. Dec. 166.
Every breach of a contract by actual and positive misconduct is a conversion. Wheelock v. Wheelwright, 5 Mass. 104, 1 Am. Neg. Cas. 659; Story, Bailm. §§ 232, 269, 396, 413; Phillips v. Brigham, 26 Ga. 617, 71 Am. Dec. 227.
A mere interference with the terms of a contract, whereby the contract is broken, is concededly not enough....
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