Parker v. The First National Bank of Lisbon

• Decision Date: 14 December 1892
• Citation: 54 N.W. 313,3 N.D. 87
• Court: North Dakota Supreme Court

54 N.W. 313

3 N.D. 87

ALMON H. PARKER v. THE FIRST NATIONAL BANK OF LISBON

Supreme Court of North Dakota

December 14, 1892

Appeal from District Court, Sargent County; Lauder, J.

Action by A. H. Parker against the First National Bank of Lisbon for the conversion of a quantity of wheat. A demurrer to the complaint was overruled, and defendant appeals.

Reversed.

Goodwin & Van Pelt for appellant.

Lockerby & Cady, for respondent.

OPINION

BARTHOLOMEW, J.

This is an action for conversion of certain wheat. There was a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and this appeal was brought by defendant solely upon such ruling. It will not be necessary to consume the space required to set out the complaint in full. Respondent claimed the wheat by virtue of a thesher's lien, under Ch. 88, Laws Dakota Territory 1889. Section 1 of that chapter reads as follows: "Every person or persons owning and operating a threshing machine shall have a lien, from the date of threshing, upon all grain threshed by him with such machine, for the value of the services so rendered in doing such threshing." The second section gives such lien, when filed within the time specified, priority over all liens or incumbrances upon the grain, created subsequent to the act. Section 3 provides for filing an account, and specifies what the account shall contain, including the number of bushels threshed, the price agreed upon for such work, the name of the person for whom such threshing was done, and a description of the land upon which the grain was grown. It also provides for filing the statement for record. Section 4 makes such filing notice to all purchasers and incumbrancers subsequent to the date of said filing; and § 5 provides for the foreclosure of the lien upon the notice, and in the manner, provided by law for the foreclosure of chattel mortgages. No copy of the statement required to be filed is incorporated in or annexed to the complaint. Appellant disclaims raising any question as to the constitutionality of the statute under which respondent claims, but contends that respondent has failed to bring himself within the provisions of the statute, in two particulars: First, that it does not appear from the complaint that respondent ever filed the statement required by the statute; and, second, that it does not appear from the complaint that respondent was the owner of the machine that did the threshing. The language used by Justice Wallin in construing the statutory seed grain lien in Lavin v. Bradley, 1 N.D. 291, 47 N.W. 384 is in all respects pertinent to this case: "In construing the seed lien statute the fact must not be overlooked that the lien given is wholly statutory in its nature and origin. It was unknown to the common law, and hence can neither be acquired nor enforced unless there has been a substantial compliance with the act of the legislature from which the lien arises." Relative to the statement filed, the complaint states: "Plaintiff further alleges that, for the purpose of securing his pay for said threshing and for the purpose of perfecting a lien on the grain so threshed, he caused to be made an itemized statement of his account for such threshing, containing his bill therefor, and after making oath thereto," etc. There is no other reference to the statement in the complaint. The allegation is that it was "an itemized statement of his account." An itemized account, as those words are generally--and, so far as we know, universally--used includes the names of the parties, debtor and creditor, the respective items for which the credit was given, with the...