McRea v. Hillsboro National Bank

• Decision Date: 19 April 1897
• Citation: 70 N.W. 813,6 N.D. 353
• Court: North Dakota Supreme Court

70 N.W. 813

6 N.D. 353

FRED MCREA v. HILLSBORO NATIONAL BANK

Supreme Court of North Dakota

April 19, 1897

Appeal from District Court, Traill County; McConnell, J.

Action by Fred McRea against the Hillsboro National Bank. Verdict directed for plaintiff. From an order refusing to vacate the verdict and grant a new trial, defendant appeals.

Reversed.

Order reversed, and a new trial granted.

Carmody & Leslie, for appellant.

J. H Bosard, for respondent.

OPINION

WALLIN, J.

The complaint in this action charges, in effect, that on December 1, 1890, the plaintiff was the owner and in possession of a span of black mares, a set of double harness, and a buggy and that on said day the plaintiff "delivered" said property to one Wright, under a contract whereby Wright agreed to pay as purchase price therefor the sum of $ 325 within the two weeks after such delivery, said purchase price to be paid in wood; that the title of said property, under said agreement, was to be and remain in the plaintiff until said purchase price was paid, that on January 5, 1891, said Wright paid in wood on said price the sum of $ 29; and that the defendant on or about the 16th of January, 1891, wrongfully took possession of said property, and converted the same to his own use, to plaintiff's damage, etc. The answer admits the delivery to Wright, and his agreement to pay the price alleged as purchase money, but alleges, in substance, that the transaction between Wright and the plaintiff was an unconditional sale, whereby the title passed at the time of the delivery of the property to Wright, and further alleges that the defendant came into possession of the property lawfully about January 16, 1891. The case was tried to a jury, and at the conclusion of the testimony the trial court instructed the jury that under the evidence the plaintiff was entitled to a verdict for the value of the property at the time it came into the defendant's possession, and that the jury should, after arriving at the value of the property from the evidence, return a verdict for the plaintiff. This instruction, in so far as the court directed the jury to find a verdict for the plaintiff, was excepted to by the defendant, and the question presented by such exception is the principal question to be determined in this court. Where, at the conclusion of a trial, an issue of fact is withdrawn from the jury, and a verdict is directed upon such issue, the test of the correctness of the ruling has been variously stated in the authorities. Citations upon this familiar feature of the practice would seem to be unnecessary. It is entirely safe to say that, where there is a substantial conflict in the evidence drawn out at the trial, it is error to direct a verdict upon an issue of pure fact. Where honest and intelligent minds might reasonably differ as to the proper conclusions to be drawn from the evidence, it is error to withdraw the case from the jury. A motion made at the close of the trial to direct a verdict is in the nature of demurrer to evidence, and upon such demurrer it is well settled that all fair inferences from the evidence which are favorable to the party opposing such demurrer must be drawn by the court. Applying this test to the evidence in this case, we are of the opinion that the court below erred in withdrawing the principal question of fact in the case from the consideration of the jury, viz. whether the sale transaction set out in the pleadings was or was not an absolute sale, whereby the title passed from plaintiff to said Wright. If title did pass, then the verdict was wrong, both legally and morally.

Looking into the evidence, we find serious discrepancies therein, and to our minds it is, when fairly construed, so conflicting and dubious in its character that it should have been presented to the jury for determination. In describing the sale transaction, the plaintiff testified: "On the way we got to talking about business, and I told him I wanted to sell my team. He asked me what I would take for the team, and I told him $ 325 for the team, rig, blankets, and all. We kept talking, but came to no conclusion until we came to Reynolds. He said 'Drive to the hotel;' and we drove to the hotel to get warm. I drove up, and he said, 'Take them over to the barn and put them up;' and I drove over to the barn and put the team in. We were cold, and went into dinner. After dinner he broached the subject of the team, and I told him I would take wood delivered in Grand Forks. He said he would deliver maple at $ 5, and oak at $ 4.50, laid down at Grand Forks. I told him I would take wood delivered at that price. I asked him how the county laid there [meaning at Reynolds;] and I found out that Main street was the county line, and the horses, which at the present time were in the barn, and were on one side of the county line, and we were on the other, and, by taking a mortgage on the team, I would have to record it in both counties. I did not feel like doing that, so I told him I would leave the team in the barn, and, when he delivered to me the wood to that value, he could take the team; but they were to remain in my possession--be mine--until I got the value. I told him he was a stranger to me, and could not expect me to let him take the team. He said he would ship me the wood by the last of the week. I said, 'I have the team in the barn, and, when I get my wood to the full value, then the team shall...