Pickert v. Rugg

• Decision Date: 02 September 1890
• Citation: 1 N.D. 230,46 N.W. 446
• Parties: Pickert v. Rugg et al.
• Court: North Dakota Supreme Court

1 N.D. 230

46 N.W. 446

Pickert

v.Rugg et al.

Supreme Court of North Dakota.

Sept. 2, 1890.

Syllabus by the Court.

1. Instructions of trial judge to jury held correct under the evidence.

2. To entitle a person to recover the highest market value between the time of the conversion of property and of the rendering of the verdict, he must affirmatively show such facts as establish clearly that he has commenced and prosecuted his action with reasonable diligence. No presumption will be indulged in his favor, and the statute will be strictly construed against him.

3. Delay of 11 months in bringing his action, held fatal to plaintiff's claim that he had prosecuted his action with reasonable diligence, within the meaning of section 4603, subd. 2, Comp. Laws, giving him the highest market value between the conversion and the verdict, when the action has been prosecuted with reasonable diligence.

4. Sufficiency of the evidence to support the verdict cannot be assailed in the supreme court when in neither the notice of intention to move for a new trial nor the bill of exceptions are the particulars specified wherein the evidence is alleged to be insufficient.

Appeal from district court, Griggs county; Roderick Rose, Judge.Thomas & Davis, for plaintiff. E. J. & J. P. McMahon and J. E. Robinson, for defendants.

Corliss, C. J.

The plaintiff has been so far successful in her effort to recover the value of wheat unlawfully taken from her possession. The wheat in question was seized by the defendant Walden, as sheriff, under an attachment against Rozell Pickert, the father and general agent of plaintiff. Defendant McMahon appears to have directed the seizure, acting as attorney for the plaintiff in the action in which the attachment was issued. Defendants do not pretend that they could or do justify under the attachment against plaintiff's father. They do not question plaintiff's ownership of the wheat, but they insist that their liability for the tort was settled by the plaintiff, through her alleged agent, Mr. White. It is against the charge of the trial court on the scope of his powers as agent that the first assignment of error is directed. The court, in substance, charged that the jury must find whether White was the general agent of plaintiff, and whether he had power to settle the plaintiff's cause of action for the conversion of her wheat. Certainly the defendant cannot complain of the submission to the jury of the question whether White was the general agent of the plaintiff. He derived all his authority from the father of plaintiff, who was plaintiff's general agent. There was nothing to show that the general agent could delegate his powers to White. The case is not brought within the provisions of section 4003, Comp. Laws, and any other delegation of power is forbidden by that section. White testified as to his authority as follows: “I have never seen the plaintiff. I was general superintendent of her farm and farming operations during part of the year 1887. All my dealings on the part of the plaintiff have been through her father. He acted as her general agent, and gave me chief control under him. My duties were the general supervision of the farm. My authority simply consisted in threshing this wheat, and hauling it to market, and everything of that kind. I had no authority to settle any bills or anything of that kind; but had authority to settle the Rugg account, if I could. I received instructions by telegram from Mr. Pickert to arrange the claim, but not to pay any costs.” It is obvious that White had no such general authority in the management of plaintiff's business as would authorize him to compromise a cause of action in her favor arising from the conversion of her property. Nor did the court err, as against defendants, in submitting to the jury the question of White's special authority to settle plaintiff's claim against defendants. Rozell Pickert, plaintiff's general agent, denied that he gave him any such authority. He said: “I never gave White any authority to settle any suits at all. I simply stated in a telegram to White that I would pay these bills to Hope, without costs.” Giving White's testimony the most favorable construction, it appears that the fact of special authority to him was a controverted one, and was therefore properly submitted to the jury. But White does not claim that he had any authority to settle plaintiff's claim against defendants for conversion. His power was limited to the adjustment of the Rugg account, which appears to be a claim, not against plaintiff, but against her father.

The third exception to the charge is to that portion of it which, it is claimed, assumes that defendants are liable for the balance of the wheat taken by them, after deducting the amount necessary to settle the Rugg claim and another claim, on which some of plaintiff's wheat was attached, known as the “Starling claim.” We find no error in this. The amount of wheat taken, according to the testimony on the part of the plaintiff, was 6,000 bushels. Assuming all that defendants claim as to the amount of wheat necessary to pay these two claims, and that White, with full power, did settle them by turning over a sufficient amount of the wheat attached, there still remained to be accounted for over 2,000 bushels. It was with reference to this testimony that the court charged the jury that they must deduct the wheat taken for settlement from whatever amount of wheat the jury should find the defendants had seized. As the verdict was for only $300, it is apparent that the jury have not found for an amount in excess of the value of the balance of the wheat taken according to plaintiff's showing, after deducting all that it is claimed was turned over by plaintiff's agent in settlement of these accounts.

The point that the evidence is insufficient to sustain the verdict is not before us, the defendant not being in position to raise it, because neither in his notice of intention to move for a new trial nor in his bill of exceptions did he specify the particulars in which the evidence is alleged to be insufficient. Comp. Laws, §§ 5081, 5090.

The fifth assignment of error presents the question of the proper measure of damages in actions for conversion. The court instructed the jury that the plaintiff was entitled to recover the highest market price at any time between the conversion and the verdict. This is declared to be the rule, under certain circumstances, by section 4603, subd. 2, Comp. Laws: “The detriment caused by the wrongful conversion of personal property is presumed to be (1) the value of the property at the time of the conversion, with interest from that time; or, (2) where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party.” The second subdivision of the foregoing section was interpolated into it by amendment in 1885, (Laws 1885, c. 42.) Prior to that time our Code had established the rule which has the sanction of the best-considered adjudications, and which accords most perfectly with the policy of the law in awarding damages, where the doctrine of exemplary damages has no application,-full compensation, without punishment. That rule was embodied in section 1980 of the Civil Code, (section...