Plano Mfg. Co. v. Jones
| Decision Date | 06 May 1899 |
| Docket Number | 6731 |
| Citation | 79 N.W. 338,8 N.D. 315 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Fisk, J.
Action by Plano Manufacturing Company against John K. Jones. Judgment for plaintiff. Defendant appeals.
Reversed.
Judgment reversed, and a new trial granted.
W. E Purcell, for appellant.
Freerks & Freerks, for respondent.
This action was brought to recover damages for the alleged conversion of a crop of wheat upon which plaintiff claims a lien by virtue of a chattel mortgage. It is conceded that one Olson gave the mortgage to plaintiff, and that subsequently Olson raised the crop covered by the mortgage, and that he threshed the same, and thereafter placed the grain in certain elevators and received the usual storage tickets for the same. It is conceded that Olson delivered such tickets to the defendant but no claim is made that the defendant ever had the grain in his actual possession, or that he in any manner aided the mortgagor in placing the wheat in the elevator, or in removing it from the premises of the mortgagor. There is a dispute between counsel as to whether the evidence shows that the tickets were turned over to the defendant for safe-keeping only, or whether as plaintiff's counsel claims they were turned over to enable the defendant to realize upon a seed lien held by the defendant against the mortgagor. For the purposes of the case we will accept the theory of plaintiff, viz: that defendant held the tickets as collateral to his seed lien, and, consequently, that the defendant, as between himself and Olson, had a special property in the tickets. Before the action was instituted, a demand was made in plaintiff's behalf upon the defendant for the wheat, or the proceeds of the wheat; but no demand is shown to have been made for the tickets themselves, and, as has been said, the action is brought to recover for the conversion of the wheat. The turning point in the case arises upon the instructions given to the jury. Among other instructions to the same effect, the Court said to the jury: "If you believe by a fair preponderance of the evidence that such storage tickets were delivered to this defendant by Mr. Olson for the purpose of applying the proceeds thereof upon any indebtedness held by him against Mr. Olson, or if you find they were delivered to him for any other purpose than that of safe-keeping, as claimed by the defendant, and you also find from the evidence that while he had such storage tickets in his possession this plaintiff demanded possession of said wheat from the defendant, and he refused such demand, asserting that he had a prior right to said tickets, as against the said plaintiff, then his act in so refusing to deliver possession of such wheat would constitute in law a conversion, and your verdict must be for the plaintiff." This instruction, with others of like import, were excepted to by counsel for the defendant, and the same are assigned as error in this Court. In our opinion, these instructions were unsound in law, and embodied prejudicial error. The plaintiff can recover in this action only by showing that the defendant, at some time prior to the commencement of this action, had the actual or constructive possession of the identical wheat covered by the plaintiff's mortgage. The Court charged the jury that there was no evidence showing that the defendant ever had the actual possession of such wheat. In our opinion, it is equally clear from the record that the defendant never had the constructive possession of the same. He never had constructive possession, because he was never in a position to legally obtain the actual possession of the identical grain upon which alone plaintiff claims a lien. It does not appear that the grain was in the possession of the elevator companies at the time the demand on the defendant was made for the same; and if it were there, and if demand had been made by defendant for the same, such demand could have been legally met and complied with by a delivery of other grain of like kind and quantity. Rev. Codes § 1791. The precise point in question was decided by this Court in the case of Best v. Muir, 8 N.D. 44, 77 N.W. 95. In the case cited, which was carefully considered, we held, upon a similar state of facts,...
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