Peterson v. St. Anthony & D. Elevator Co.

• Decision Date: 07 November 1899
• Citation: 9 N.D. 55,81 N.W. 59
• Court: North Dakota Supreme Court
• Parties: PETERSON v. ST. ANTHONY & D. ELEVATOR CO.

9 N.D. 55

81 N.W. 59

PETERSON

v.ST. ANTHONY & D. ELEVATOR CO.

Supreme Court of North Dakota.

Nov. 7, 1899.

Syllabus by the Court.

In this case the owner of a chattel mortgage authorized and requested the mortgagor to haul away the wheat covered by the mortgage, and sell the same, and pay him (the mortgagee) with the proceeds. Held, that such consent to a private sale of the property operated as an implied waiver of the lien of the mortgage, whereby the mortgage was defeated.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Action by Pehr Peterson against the St. Anthony & Dakota Elevator Company. Judgment for plaintiff. Defendant appeals. Reversed.McCumber & Bogart and Wilson & Van Derlip, for appellant. W. E. Purcell (Chas. E. Wolfe, of counsel), for respondent.

WALLIN, J.

This action was brought to recover damages for the alleged conversion of certain wheat upon which plaintiff had a chattel mortgage. The trial in the district court was had without a jury, and judgment was entered in favor of the plaintiff. The defendant appealed from such judgment, and the action is now before this court for trial de novo.

On the trial it was stipulated that the mortgagor delivered at defendant's elevator at Stiles, N. D., 135 bushels of wheat, worth 65 cents per bushel; and it is practically uncontroverted that the plaintiff bought the wheat of the mortgagor, and at his request paid one Kinney for such wheat; also, that the plaintiff had a chattel mortgage upon the wheat to secure a sum in excess of the judgment.

Appellant's counsel contend that the judgment should be reversed, and base their contention upon two grounds: (1) Upon the ground that it does not appear that before the action was brought there was a demand made for the wheat, followed by a refusal to deliver the same; (2) that it does affirmatively appear that there was a waiver by the plaintiff of the lien created by the mortgage, whereby the lien was destroyed, prior to the sale of the wheat to defendant. We shall have occasion, in disposing of the case, to consider only the point of waiver, and will be compelled to hold, under the evidence, that plaintiff did waive the lien of the mortgage. A perusal of the testimony given by plaintiff's witnesses discloses that plaintiff-the mortgagee-visited the premises where the grain was grown on the day the mortgagor finished threshing in the year in question, and on that occasion requested the mortgagor to pay the debt secured by the mortgage. The mortgagor replied, in substance, that he would have to sell the wheat before he could get the money to pay with. To this plaintiff replied, in substance, that the mortgagor should go and get it. The mortgagor testified as follows: “Well, he didn't really tell me I should sell it. But I told him I would have to haul the wheat before I could get the money. Then he said I should get the money,-he wanted the money.” The testimony of the plaintiff is equally clear, and to the same effect. While on the stand, the plaintiff was asked as follows: “Q. Did you ever tell him anything about it? A. I told him to haul the wheat and sell it, and then I sent the deputy sheriff out to take care of it.” It appears that plaintiff gave the notes...