Remmick v. Mills

• Court: North Dakota Supreme Court
• Writing for the Court: ROY A. ILVEDSON; TEIGEN
• Citation: Remmick v. Mills, 165 N.W.2d 61 (N.D. 1968)
• Decision Date: 17 December 1968
• Docket Number: 8454,Nos. 8453,s. 8453
• Parties: Melvin REMMICK, Plaintiff and Respondent, v. William R. MILLS and Thomas Pinks, Defendants, and William R. Mills, Defendant and Appellant. W. Floyd LANG, Plaintiff and Respondent, v. William R. MILLS and Thomas Pinks, Defendants, and William R. Mills, Defendant and Appellant. Civ.

Page 61

165 N.W.2d 61

Melvin REMMICK, Plaintiff and Respondent, v. William R. MILLS and Thomas Pinks, Defendants, and William R. Mills, Defendant and Appellant.

W. Floyd LANG, Plaintiff and Respondent, v. William R. MILLS and Thomas Pinks, Defendants, and William R. Mills, Defendant and Appellant.

Civ. Nos. 8453, 8454.

Supreme Court of North Dakota.

Dec. 17, 1968.

Rehearing Denied March 3, 1969.

Syllabus by the Court

1. A counterclaim alleging that a third party, as agent of the plaintiffs, vandalized a baler, states a claim against the plaintiffs and it was error for the trial court to dismiss such counterclaim.

2. When a court has jurisdiction of parties and subject matter, its judgment, however erroneous, is complete justification, until stayed, reversed or set aside, of acts done in reliance upon it.

3. The term 'goods' in the Uniform Sales Act, 51--01--01(10), North Dakota Century Code, includes maturing alfalfa hay and it is subject to sale and purchase like other personal property under said Act, and title will pass according to the intention of the parties.

4. In an appeal from a judgment an issue which is neither raised nor considered in the trial court cannot be raised on appeal.

5. When motion for summary judgment is based upon affidavits in which the affiants state that the facts therein stated are within the personal knowledge of the affiants, party opposing such motion who is in doubt as to whether such affidavits in support of the motion are made on personal knowledge, should bring this to the attention of the trial court and except to the affidavits at or prior to the hearing on motion, and objection may not be raised for the first time on appeal.

6. Alleged error in admission of hearsay testimony was harmless error in view of subsequent cross-examination of other witnesses who gave direct testimony on point involved.

7. A party must offer to prove facts sought to be elicited from a witness before he can assign error upon an objection sustained to a question, the competency of which is not apparent on its face.

8. Specification of error unsupported by written argument in brief filed in Supreme Court is deemed abandoned.

9. By express provision of Section 32--03--07, North Dakota Century Code, the jury may award exemplary damages in an action for breach of an obligation not arising from contract when the defendant has been guilty of oppression, fraud, or malice, actual or presumed. Malice in law may be implied from the unjustifiable conduct which caused the injury complained of or from a wrongful act intentionally done without just cause or excuse.

10. It is a disputable presumption in this state that an unlawful act was done with an unlawful intent and that a person intends the ordinary consequences of his voluntary act. Sec. 31--11--03, N.D.C.C.

11. Where an instruction is correct as far as it goes, error cannot be assigned on the ground that it is not sufficiently full or explicit, unless a request is made for a more specific and comprehensive instruction.

William R. Mills, Bismarck, for appellant.

Vogel & Bair, Mandan, for respondents.

ROY A. ILVEDSON, District Judge.

These are two civil actions concerning conversion of personal property, to wit: stacked alfalfa hay. The issues are identical and the cases were consolidated for trial. In December 1963, a judgment of the District Court of Burleigh County quieted title to the East Half of the Northwest Quarter and lots 1 and 2 of Section 8, Township 138, situated in Burleigh County, in Isabel M. Perry. Prior to this, Herman Erling had occupied the land for several years as the grantee of a deed from a person who claimed title through a tax deed proceeding. While he was in possession, Herman Erling cleared thirty acres of the land and planted alfalfa in 1962. The appellant William R. Mills, was the tenant of Herman Erling in 1963, and when the District Court judgment quieting title in Mrs. Perry was entered, he relinquished his possession of the land. On January 22, 1965, the Supreme Court of North Dakota reversed the judgment of the District Court and determined that Herman Erling was entitled to have possession of the land restored to him until the issue of title was determined by the Department of Interior of the United States. Perry v. Erling, N.D., 132 N.W.2d 889.

While Mrs. Perry was in possession of the land during the year 1964, she entered into contracts through her agent, Attorney Milton K. Higgins, for the cutting and stacking of the alfalfa hay with the plaintiff Melvin Remmick for the first cutting, and with the plaintiff W. Floyd Lang for the second cutting. Mr. Remmick and Mr. Lang each agreed to cut and stack for one-half of the hay. Lang also contracted to purchase Mrs. Perry's half of the second cutting at the going market price when the cutting and stacking had been completed. In the fall of the year, after the alfalfa had been cut and stacked by the plaintiffs, the stacks were measured by Higgins, agent for Mrs. Perry, and Lang assisted him in the measurement of all the stacks including the hay that had been stacked by Remmick. There is no dispute in this case as to the tons or amount of hay involved.

In February 1965, shortly after the Supreme Court had reversed the judgment of the District Court and determined that Herman Erling was entitled to have possession of the land, his tenant, William R. Mills, returned to the property and found that the 1964 crop of alfalfa had been cut and stacked. Two very small loads had been hauled out by Remmick but otherwise all of the alfalfa was still in stacks on the premises. Mills instructed his hired man, Thomas Pinks, to bale all of the hay and haul it to Mills's farm.

Lang and Remmick commenced separate lawsuits against William R. Mills for the conversion of the alfalfa hay belonging to each of them. The complaints allege that defendant Mills was guilty of malice, and punitive as well as actual damages are requested.

A general denial was set forth in the answers to the complaints. Counterclaims were interposed in each lawsuit by Mills against the plaintiffs and against Isabel M. Perry as third-party defendant. No service of the summons was made upon Isabel M. Perry in either action and upon motion the third-party complaints were dismissed as to Mrs. Perry. Each counterclaim set forth the history of the land and the court proceedings that had taken place, and each states, inter alia, that when Mills found the stacked alfalfa on the premises in February 1965, he believed that it belonged to Mrs. Perry. He had presumed that the persons who had cut and stacked the alfalfa had already been paid for their services; that Mrs. Perry owed Mills for the use of the property in 1964; and that he had ordered his employee, Tom Pinks, to bale the stacked alfalfa and haul it to Mills' farm. The counterclaims further allege that Milton Higgins, for himself and as agent of Lang, Remmick, and Isabel Perry, vandalized the baler that was being used on the premises and actual and punitive damages are requested.

In each action the plaintiff moved for dismissal of the counterclaim against him upon the ground that it related to a controversy between the defendant, Mills, and Mrs. Perry, who was not a party to the action by virtue of the dismissal of the third-party complaint, and upon the ground that the counterclaims failed to state a claim against the plaintiffs. The motions were granted and the district court signed orders dated June 20, 1966, dismissing the counterclaim in each action.

The plaintiff in each action moved for summary judgment against the defendant upon the ground that the plaintiff was entitled to judgment as a matter of law. The motions were based upon the verified complaint, the other pleadings, and the files and records in the case of Perry v. Erling of which the court was asked to take judicial notice.

The district court granted summary judgment in each action on the issue of liability and ordered that the issue pertaining to amount of damages due the plaintiff should be determined by a jury. The district court found in its findings of fact on summary judgment that Mrs. Perry was lawfully in possession of the land in the year 1964; that her tenants had cut and stacked the hay; that once severed, the hay involved in the lawsuits became personal property of the tenants; that this ownership was not affected by the subsequent reversal of the district court judgment in January 1965, by the Supreme Court; that the hay was admittedly taken by Mills; and that it was a wrongful conversion for which the plaintiff was entitled to damages. A trial was had before a jury on the issue of damages.

The jury did not bring in any verdict against the defendant Thomas Pinks. The evidence showed that he was only acting as agent and hired man of William R. Mills in the baling and hauling of the alfalfa. The jury awarded against appellant, Mills, $108 actual damages and $500 punitive damages in favor of the plaintiff Lang and $338 actual damages and $500 punitive damages in favor of the plaintiff Remmick.

(1) The appellant contends that the trial court erred in dismissing the counterclaims against the plaintiffs. Paragraph 12 of the counterclaim states:

'12. That Milton Higgins for himself and As agent of W. Floyd Lang and Melvin Remmick and Isabel Perry did in the middle of the night come upon the property and vandalize the baler being used for baling the hay.' (Emphasis furnished.)

The prayer for relief requests punitive and actual damages for 'malicious mischief' of the 'agent Milton Higgins in damaging the baler.' Although the transcript of the testimony in the jury trial on the issue of damages indicates that both the appellant and the respondents considered Milton Higgins as agent of Isabel M. Perry, it is possible that there is other evidence of agency that was not produced because the counterclaims were dismissed by the trial court. If the allegations underlined...