Raasch v. Goulet

• Decision Date: 26 May 1925
• Citation: 204 N.W. 338,52 N.D. 707
• Court: North Dakota Supreme Court

204 N.W. 338

52 N.D. 707

CASPER F. RAASCH, Appellant, v. GEORGE O. GOULET, Respondent

Supreme Court of North Dakota

May 26, 1925

From a judgment of the District Court of Barnes County, Pugh Special Judge, plaintiff appeals.

Reversed in part.

Reversed and remanded.

Lemke & Weaver, for appellant.

The evidence of the kind of crop the land would ordinarily yield of the stage of the crop's growth when injured or destroyed, of the average yield per acre of similar land in the neighborhood . . . is competent and maybe weighed by the jury to find the damage to a growing crop at the time of its injury. United States Smelting Co. v. Sisam, 112 C C. A. 37, 191 F. 293, 36 L.R.A. (N.S.) 976.

A farmer is competent to testify as to the value of hay which is grown upon his own land and this even in the absence of proof of a market for the same. McGilvra v. Mpls. St. P. & S. S. M. R. Co., 159 N.W. 854.

Whenever the evidence produced presents an issue of fact which if determined in plaintiff's favor would entitle him to recover, the case should be submitted to the determination of the jury. Where there is some evidence, although slight, the case should be submitted to the jury if there is more than a scintilla of evidence. 36 Cyc. p. 1532, subd. A.

It is a general rule of evidence that where the testimony offered tends in any reasonable degree to establish the probability or improbability of the fact at issue, it should go to the jury. (Minn.) 179 N.W. 644.

The evidence must be viewed in the light most favorable to the party against whom a direction is sought. (Mich.) 190 N.W. 642.

A court is warranted in taking a case from a jury only where there is an entire lack of creditable evidence. Turner v. Lehrman (Wis.) 141 N.W. 1009.

Where there is creditable evidence from which a reasonable inference may be drawn in favor of the contentions of either party the question is for the jury. Guillaume v. Wisconsin-Minnesota Light & P. Co. (Wis.) 155 N.W. 636.

In every case where a legal right has been enfringed, and even if no damages at all are shown, the law will presume damages. Stroup v. Bridger (Iowa) 100 N.W. 113; Douglas v. Hobe, 36 A.D. 638.

There is no doubt that, for any wrongful invasion of another's property, some damage necessarily results; and the law does not require any distinct injury to be shown in order to justify a recovery. It considers the infringement of the rights of a party an injury for which damages must be given; because upon no other principle can one's rights be protected. Nicholson v. N. Y. R. Co., 22 Conn. 74; Vogel v. Osborn (Minn.) 126 N.W. 453; 17 C. J. § 65, p. 726; State Bank v. Bismarck E. & I. Co., 31 N.D. 102, 153 N.W. 459; Ray Swallow v. First State Bank, 35 N.D. 608, 161 N.W. 207; Randolph v. United R. Co. (Mich.) 181 N.W. 44.

Combs & Ritchie, for respondent.

It is a well settled rule that a judgment of a court of competent jurisdiction on a question directly involved in a suit is conclusive in the second suit between the same parties where the same questions come again in issue although in the second action they relate to different subject matter. Phelps v. Western Realty Co. (Minn.) 94 N.W. 1085; Stevens v. Wagleigh, 57 P. 622; 30 Century Dig. P 1242.

If a point or question was in issue and adjudicated in a former suit a party bound by the judgment cannot escape the estoppel by producing at the second trial new argument or additional or different evidence in support of the proposition which was decided adversely to him. Harrington (Cal.) 81 P. 546; Breeze v. Haley (Colo.) 18 P. 551; 65 N.J.Eq. 479; 78 N.W. 606.

CHRISTIANSON, Ch. J. BIRDZELL, NUESSLE, JOHNSON, and BURKE, JJ., concur.

OPINION

CHRISTIANSON, Ch. J.

This is a sequel to Raasch v. Goulet, 49 N.D. 936, 194 N.W. 380, and arises out of the same transaction which was involved in that case. That was an action for moneys had and received, brought to recover moneys which the plaintiff, Raasch, had paid to the defendant, Goulet, for certain seed grain. This is an action in conversion, brought to recover damages for the conversion of fifty tons of hay, and the crops produced from the seed grain involved in the former suit. This case was dismissed by the trial court at the close of plaintiff's case, and plaintiff has appealed from the judgment.

The following statement of facts, contained in Raasch v. Goulet, supra, is also applicable here:

"The plaintiff in 1915 owned land in Nebraska. The defendant, Goulet, owned land in Barnes county, N.D. The Lund Land Company, hereinafter referred to as the Lunds, was a real estate concern having offices at Valley City. In October, 1915, the plaintiff entered into a preliminary contract with the Lunds whereby he contracted to purchase from them for a stated consideration of $ 167,700.00 land in North Dakota, aggregating 2,580 acres, then in fact belonging to the defendant, and as a part of the consideration therefor he transferred or agreed to transfer to them his Nebraska land. The defendant had no knowledge of this transaction, neither had he sold the land or listed the same with the Lunds for sale at that time, nor in any manner authorized them to act in the sale for him of the same. Thereafter and in February, 1916, the defendant entered into a contract with the Lunds for the sale of 3,220 acres of land for a stated consideration of $ 120,765, including that the subject of the Lunds' contract with the plaintiff. The contract for the sale of this land, however, was not turned over to the Lunds by the defendant, but was left in escrow with his attorney. The defendant surrendered possession of the property to the Lunds under this contract. On March 31, 1916, the Lunds entered into a final contract for deed with the plaintiff carrying out the terms of the October contract, and the plaintiff transferred his Nebraska land to them. The Lunds immediately mortgaged the property conveyed to them and appropriated the funds thus obtained. At the time of the consummation of the transaction between the plaintiff and the Lunds, it was arranged that they should procure tenants for the plaintiff for the season of 1916 on the North Dakota land bought by him, and the plaintiff should likewise procure tenants for them for the Nebraska land. This was done. The Lunds, acting for the plaintiff and in accordance with their arrangement with him, placed four tenants on the land he had bought. They advised the plaintiff that it would be necessary for him to procure seed, and that such seed could be had on the premises from the defendant. The plaintiff instructed them to procure the seed. He himself examined some of the seed, and it was satisfactory. The seed was furnished the tenants. The plaintiff paid the defendant therefor. At the time that the seed was purchased, the defendant knew who was buying it and for what purpose, knew that the plaintiff had entered into some arrangement to buy the property from the Lunds, and advised the plaintiff that he (the defendant) had sold it to the Lunds, but did not say that he had given only a contract and not a deed. The defendant also introduced the plaintiff to some of the neighbors as the new owner. The seed was sowed on the land by the tenants according to plaintiff's directions. Some crop grew therefrom. This was harvested by the tenants. Subsequently the defendant canceled his contract with the Lunds. The plaintiff was not served with any notice of such cancellation. The defendant made claim to certain insurance money paid for damage to buildings on the land, and later dispossessed the tenants of the plaintiff. This was the first notice that the plaintiff had of the defendant's claim to the premises adverse to him. The crop was harvested and threshed, and the defendant took the landlord's share. It does not appear, however, what those crops were or what they were worth. The plaintiff received none of the proceeds. The defendant has at all times since been in possession and use of the land under claim of ownership."

Plaintiff brings this action to recover for the conversion of 50 tons of hay and the landlord's share of the 1916 crop. The questions argued on the appeal relate solely to the merits or demerits of plaintiff's case. It is contended by the plaintiff that there was substantial evidence tending to establish the cause of action alleged in the complaint. The defendant on the other hand contends...