New England Mortgage Security Co. v. Great Western Elevator Co.

• Decision Date: 23 April 1897
• Court: North Dakota Supreme Court

71 N.W. 130

6 N.D. 407

NEW ENGLAND MORTGAGE SECURITY CO. v. GREAT WESTERN ELEVATOR CO

Supreme Court of North Dakota

April 23, 1897

Appeal from District Court, Barnes County; Rose, J.

Action by the New England Mortgage Security Company against the Great Western Elevator Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Verdict and judgment vacated, and a new trial ordered.

P. H Rourke, and Winterer & Winterer, for appellant.

Young & Burke, for respondent.

OPINION

WALLIN, J.

This is an action brought by the owner of a chattel mortgage upon a crop of wheat against an elevator company, for the value of such wheat. The action was tried to a jury, and, at the close of the case, the defendant, by its counsel, requested the trial court to direct the jury to find for the defendant. This request was refused and, at the request of plaintiff's counsel, the trial court directed a verdict for plaintiff. These rulings are assigned as error in this court. Both sides, having requested a directed verdict, are in the attitude of consenting to the withdrawal of all questions of fact from the jury, and are also in the attitude of claiming that there are no disputed questions of fact in the case. In such cases, where, as in this case, there is no conflict in the evidence, the question is whether the court erred in its conclusion of law in directing a verdict. In other words, did the court, in directing a verdict, put a proper legal construction upon undisputed facts?

For the purpose of this decision, we shall concede certain facts to be established by the evidence, which defendant's counsel insists are not established. We shall assume that the undisputed evidence shows that plaintiff's chattel mortgage was duly filed, and covered certain wheat, which was raised and owned by the mortgagor; that, after such wheat was threshed, the mortgagor sold and delivered the same to the defendant; and that the debt is still unpaid. We further assume that the defendant converted the wheat to his own use and refused, on proper demand therefor, either to pay the debt secured by the mortgage, or to deliver the wheat to plaintiff. Nevertheless, it is our opinion, and we shall so rule, that the plaintiff has, through its authorized agent debarred itself from asserting or claiming a lien on the wheat. The evidence shows clearly that the agent knew of and authorized the sale of wheat to the defendant. The attorney for the plaintiff, who represented plaintiff in procuring the note and mortgage, and has at all times since their execution and delivery to him had the same in his hands, testified in plaintiffs behalf as follows: "I have had the note in my possession from the time of its execution until now. I have authority to do anything with it that they have." Upon the trial, one Thurber, a witness for the plaintiff, testified as to a conversation had at Valley City, between the mortgagor (Vold) and the plaintiff's said agent, as follows: "I was at Valley City with him once, the day he paid the $ 10 on the note. I was with him at Mr. Young's office when he paid the money. Q. Anything said that day between Mr. Young and him about the wheat? A. Well, he told Mr. Young that he was taking the grain to Oriska, because he could get better prices than at Valley City. Q. Can you state any clearer just what Mr. Young said to Mr. Vold about the hauling and selling of the wheat, and to pay him? Get it in just as near the language of Mr. Young as you can. A. I can't give it any clearer. I didn't pay any attention to the conversation. It was not interesting to me. Q. What were they talking about when Mr. Young wanted him to hurry and haul off the wheat? (Question read.) A. In that conversation Mr. Young stated to Mr. Vold to hurry up, and haul in the grain that he raised. Q. What did Mr. Young want him to hurry for? A. I don't know. Q. What did Young say? A. I don't remember exactly. He told Ole, he says, 'I would hurry up, and haul the grain;' and Ole says, 'I can't until Thurber hauls it for me, because he is doing the work.' Q. What did he tell him to do with it when it was hauled? A. To pay him. Q. What did he say? What did he want him to do, if anything? A. Well, just hurry and haul off the grain. That is about all I know. Q. Was there anything said about paying the rent on the land? A. Well, not as I remember of anything about pay or rent. Q. Was there anything said about the note or chattel mortgage? A. Not as I remember of. Q. You don't remember what led up to the conversation? A. No, sir; I don't remember. Q. But they were talking about the wheat that was grown on section six? A. Yes, sir. Q. You were hauling it, and had hauled one load to the N. P. elevator, and had sold it? A. Yes, sir. Q. Of which this $ 10 was paid on the note, that day as part -- A. I couldn't say as particularly of that load. Q. Who collected the money? A. Ole Vold. Q. You knew that Ole Vold talked that over at Mr. Young's office? A. Yes, sir. Q. Did they talk about this load of wheat? A. No, sir. Q. They were talking about wheat that was to be sold? A. Yes, sir. Q. Mr. Vold said he was hauling it there, because he was getting a better price at Oriska than he could get at Valley City? A. Yes, sir. Q. That is the fact? A. Yes, sir. Q. And Mr. Young said he wanted him to hurry up, and get it hauled? A. Yes, sir." On his redirect examination, the witness stated to Mr. Young, the agent who tried the case for pla...