Raasch v. Goulet

• Decision Date: 26 May 1925
• Docket Number: No. 4835.,4835.
• Parties: RAASCH v. GOULET.
• Court: North Dakota Supreme Court

52 N.D. 707

204 N.W. 338

RAASCH

v.GOULET.

No. 4835.

Supreme Court of North Dakota.

May 26, 1925.

Syllabus by the Court.

Where G. entered into an executory contract with L. for the sale, to the latter, of certain real property in North Dakota, and L. is placed in possession under his contract, and, where L. thereafter, while in such possession, and with the knowledge and acquiescence of G., sells the premises to R., R. becomes an assignee of L. within the purview of sections 8119-8122, C. L. 1913, and it is incumbent upon G., in the event he desires to cancel the contract with L., as against R., as assignee, to serve notice of cancellation upon R.; and service of notice of cancellation upon L. alone, does not cancel or forfeit the rights acquired by R. as assignee of L. Williams v. Corey et al., 21 N. D. 509, 131 N. W. 457, Ann. Cas. 1913B, 731, followed.

The plaintiff, in an action for conversion, must recover on the strength of his own title, and not on the weakness of that of his adversary.

In the instant case plaintiff sued for the conversion of certain grain and hay. For reasons stated in the opinion, it is held that plaintiff has no title to the grain, but has title to the hay.

Appeal from District Court, Barnes County; Pugh, Special Judge.

Action by Casper F. Raasch against George O. Goulet. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Lemke & Weaver, of Fargo, for appellant.

Combs & Ritchie, of Valley City, for respondent.

CHRISTIANSON, C. J.

This is a sequel to Raasch v. Goulet, 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 50 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, 194 N. W. 380, 381, 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 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 that there was no such evidence; and that the evidence adduced conclusively established that the alleged cause of action did not exist. After a careful...