Roney v. H. S. Halvorsen Co.

• Decision Date: 10 November 1914
• Citation: 149 N.W. 688,29 N.D. 13
• Parties: RONEY v. H. S. HALVORSEN CO. et al.
• Court: North Dakota Supreme Court

29 N.D. 13

149 N.W. 688

RONEY

v.H. S. HALVORSEN CO. et al.

Supreme Court of North Dakota.

Nov. 10, 1914.

Syllabus by the Court.

A vendor, under an executory contract for the sale of land and who is not in possession thereof, has no title to the crop raised and severed by the vendee in possession, even though the severance takes place after notice of the cancellation of the contract by reason of failure to make the necessary payments.

A party may not take contradictory positions; and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again.

A vendor in an executory contract for the sale of land, who has clearly elected to cancel the same and not abide by it, has no right of action for the unpaid balance of the purchase price.

Where the vendee in a land contract has sowed and harvested grain upon the land involved and the vendor wrongfully seizes said grain, such vendor will not be allowed to counterclaim, in an action for the conversion thereof, payments claimed to be due and owing on such land contract. Such claim does not rise out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claim, nor is it connected with the subject of the action.

Appeal from District Court, Cass County; Pollock, Judge.

Action by T. H. Roney, as trustee of the Peterson Machine Company, a corporation, against H. S. Halvorsen Company, a corporation, and others. From judgment for plaintiff, defendants appeal. Affirmed.

This is an action brought by T. H. Roney, as trustee of the Peterson Machine Company, to recover of appellants for the conversion of certain flax of the stipulated value of $1,500. The defendant the Halvorsen Company secured a contract to purchase the land on which the flax was grown from the state of North Dakota. Thereafter it contracted with one Patterson to assign its contract with the state to him for $7,200, $600 of the purchase price being paid by Patterson in cash, $1,000 due under the contract on March 1, 1911, $1,000 on November 1, 1911, and the balance due November 1, 1912. Thereafter the said Halvorsen Company assigned its interest in the said contract to the defendant the Hammer-Condy Company. In April, 1912, and after the payment of $1,000 to be made on March 1, 1911, became due, Patterson assigned his interest in the land to the plaintiff Roney as trustee, etc., with the knowledge and consent of the Halvorsen Company. The said Halvorsen Company agreed to accept the balance of the purchase price on said real estate from the said Roney. After this assignment, Roney immediately entered into possession of the land and, with the Halvorsen Company's knowledge, sowed the land to flax. On July 20, 1911, none of the payments except the original payment of $600 having been made, the Halvorsen Company served on the said Roney a notice of cancellation of the contract, claiming that the $1,000 installment of March 1, 1911, was past due and unpaid, although the said Roney testified to a waiver of this default or an agreement with the Halvorsen Company to extend such payment to November 1, 1911. After the 30 days specified in the notice had lapsed, the Halvorsen Company claims to have made an arrangement with Roney's tenant to cut the flax for them, but admits that Roney knew nothing of this agreement. Roney, on the other hand, testified that his tenant advised him that he had cut the flax for him and that threshing would commence late in October, 1911. Later Roney sent a man to look after the threshing and found that the Halvorsen Company had seized the crop and was threshing it. After such seizure, the Halvorsen Company turned over one half of the flax to Roney's tenant, though under the lease between Roney and the tenant the whole of such flax belonged to Roney until the division and the plowing back of the land in the fall, which Roney testified was not done. The other half of the flax, being of the stipulated value of $1,500, the Halvorsen Company kept, and it is for the conversion of this portion that the action was brought and the recovery was permitted in the lower court. The Halvorsen Company in its answer claimed that the cancellation proceedings divested Roney of any interest in the land and in the crops and also set up a counterclaim asking to have the value of the flax applied as an offset on the amount due from Roney on the purchase price of the land under the contract alleged to have been canceled. At the close of the trial, Roney moved for a directed verdict on the ground that the evidence showed that he (Roney) was in undisturbed possession of the land and the grain growing thereon until after the latter was cut and to be threshed, and that the Halvorsen Company's remedy, if any, was limited to the recovery of the value of the...