Omlie v. The Farmers' State Bank
| Citation | 80 N.W. 689,8 N.D. 570 |
| Decision Date | 12 October 1899 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina County; Sauter, J.
Action by O. M. Omlie against the Farmers' State Bank of St Thomas. Verdict directed for plaintiff, and defendant appeals.
Reversed.
Order reversed, and a new trial granted.
Wm McMurchie and Gray & McMurchie, for appellant.
Plaintiff neither owned the property, nor was he entitled to its possession at the time suit was commenced, hence could not maintain conversion. Parker v. First National Bank, 3 N.D. 87; Ellestad v. N. W. Elev. Co., 6 N.D. 93; Donovan v. St. A. & D. Elev. Co., 7 N.D. 521. The contract gives plaintiff no right to possession except upon a contingency, which the evidence shows had not arisen. Black v. Elev. Co., 7 N.D. 129. The contract in suit was construed in Lane v. O'Toole, 8 N.D. 210. Plaintiff cannot in an action of conversion recover for the proceeds of the property converted. His action is in equity. Anderson v. Bank, 5 N.D. 89. The pleading must specify the property converted. Russell & Co. v. Amundson, 4 N.D. 112.
Fraine & Douglas, for respondent.
This action was tried to a jury. At the close of the case, on motion of plaintiff's counsel, the Court below directed a verdict in favor of the plaintiff, and such verdict was returned accordingly. An exception was saved to such direction, and the same is assigned as error in this Court. It appears of record that the verdict was directed "on the ground and for the reason that all the evidence in the case shows a conversion by the defendant, the Farmers' State Bank, of property of the plaintiff, the value of which was $ 246." The record shows the following facts, which are undisputed: In the month of October, 1895, there was stored in a certain grain elevator situated at Crystal, N D., and owned by the firm of O'Conner Bros. & Grandy, a quantity of No. 1 Northern wheat, to-wit: 965 bushels. Said wheat had been placed in said elevator by one Thomas O'Toole, and a storage ticket had been issued therefor and delivered to O'Toole. At and prior to the delivery of the wheat at the elevator, and while the storage ticket was in O'Toole's possession, O'Toole was indebted to the defendant in a considerable sum, and was then being pressed for payment of the said indebtedness. Under these conditions O'Toole sold a portion of the wheat represented by the storage ticket, receiving in payment a check of O'Connor Bros., drawn upon the First Bank of Crystal, payable to defendant's order, which check, by O'Toole's direction, was delivered to the defendant. The defendant presented the check for payment, and it was paid by the bank upon which it was drawn. The amount of the check--$ 246--was credited upon O'Toole's indebtedness to the defendant. The complaint states "that on or about the 15th day of October, 1895, this plaintiff demanded, and caused to be demanded, from the defendant, through its cashier, at St. Thomas, North Dakota, the repayment to him of the money received by defendant, and that defendant neglects and refuses to deliver to the plaintiff the money so converted by the defendant." The complaint further charges "that said money so paid to the defendant was the proceeds of the property belonging to the plaintiff, and which money was the property of this plaintiff, as was at that time well known to the defendant"; and, further, that "the defendant unlawfully and without authority converted and disposed of said money to its own use and benefit, and to such extent did convert to its own use and benefit the storage ticket hereinbefore mentioned." In another connection the complaint alleges that the defendant, by its agent, "did, by means of threats, coerce and overpersuade the said Thomas O'Toole to have said wheat ticket cashed," and that "the wheat and the storage ticket at that time were, to defendant's knowledge, the property of the plaintiff." It is further alleged that in placing the grain in the elevator O'Toole acted as the plaintiff's agent, but there is no testimony whatever in the record tending to show that O'Toole, in placing the grain in the elevator did so at the request of the plaintiff, or pursuant to any directions given by plaintiff so to do. At the trial, there was much contention between counsel over the legal aspects of the case. Defendant's counsel sought by divers motions and objections to obtain a ruling which would limit and define the grounds of the action, but the Court below declined to so limit the plaintiff, and at the...
To continue reading
Request your trial