Roney v. H. S. Halvorsen Company

• Decision Date: 10 November 1914
• Court: North Dakota Supreme Court

149 N.W. 688

29 N.D. 13

T. H. RONEY, as Trustee of the Peterson Machine Company, a Corporation, v. H. S. HALVORSEN COMPANY, a Corporation, Hammer-Condy Company, a Corporation, Hammer-Halvorsen-Beier Elevator Company, a Corporation

Supreme Court of North Dakota

November 10, 1914

Appeal from the District Court of Cass County, Pollock, J. Action of trover for the conversion of grain. Counterclaim for balance due on land contract. Judgment for plaintiff. Defendants appeal.

Affirmed.

Lee Combs and L. S. B. Ritchie, for appellants.

The service of the notice of cancelation of the contract for the sale of the land, in form as required by statute, forecloses cancels, and terminates all interest of the vendee in the contract. Hage v. Benner, 111 Minn. 365, 127 N.W. 3; Lafrance v. Griffin, 160 Mich. 236, 125 N.W. 34; Golden Valley Land & Cattle Co. v. Johnstone, 21 N.D. 97, 128 N.W. 691; Williams v. Corey, 21 N.D 509, 131 N.W. 457, Ann. Cas. 1913B, 731; Rev. Codes 1905 §§ 7494--7497; Schmidt v. Williams, 72 Iowa 317, 33 N.W. 693.

Defendant had the right to counterclaim the balance due on the contract. The word "transaction," and the phrase "connected with the subject of the action," do not mean merely, or refer alone to, the wrong of which complaint is made, but are construed to include all the facts and circumstances out of which arose the injury. 34 Cyc. 687; Story & I. Commercial Co. v. Story, 100 Cal. 30, 34 P. 671; Ritchie v. Hayward, 71 Mo. 560; Lapham v. Osborne, 20 Nev. 168, 18 P. 881; 34 Cyc. 660, cases cited in note 21; Hanson v. Skogman, 14 N.D. 445 105 N.W. 90; Christofferson v. Wee, 24 N.D. 506, 139 N.W. 689.

It is well settled that one in possession under color of title to real estate may state, if he knows, who owns it. Olson v. O'Connor, 9 N.D. 504, 81 Am. St. Rep. 595, 84 N.W. 359; Ochsenreiter v. George C. Bagley Elev. Co. 11 S.D. 91, 75 N.W. 822.

Lawrence & Murphy, for respondent.

Plaintiff was at all times the owner and entitled to the possession of the flax in question. He was in possession of the land under the contract of sale to him, and entitled to all beneficial use of same. Nearing v. Coop, 6 N.D. 345, 70 N.W. 1044; Golden Valley Land & Cattle Co. v. Johnstone, 21 N.D. 101, 128 N.W. 691, Ann. Cas. 1913B, 631; Brown v. Newman, 15 N.D. 1, 105 N.W. 941; Rev. Codes 1905, § 4752; Churchill v. Ackerman, 22 Wash. 227, 60 P. 406; Stockwell v. Phelps, 34 N.Y. 363, 90 Am. Dec. 710; Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462; Martin v. Thompson, 62 Cal. 618, 45 Am. Rep. 663; Lindsay v. Winona & St. P. R. Co. 29 Minn. 411, 43 Am. Rep. 228, 13 N.W. 191; Woodcock v. Carlson, 41 Minn. 542, 43 N.W. 479; Aultman & T. Co. v. O'Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N.W. 756; Phillips v. Keysaw, 7 Okla. 674, 56 P. 695; Kirtley v. Dykes, 10 Okla. 16, 62 P. 808; Killebrew v. Hines, 104 N.C. 182, 17 Am. St. Rep. 672, 10 S.E. 159, 251; Hinton v. Walston, 115 N.C. 7, 20 S.E. 164; Jenkins v. McCoy, 50 Mo. 348; Dollar v. Roddenbery, 97 Ga. 148, 25 S.E. 410; 8 Ballard, Real Prop. § 99; Cobbey, Replevin, § 378; Shinn, Replevin, § 227; 12 Cyc. 977; 8 Am. & Eng. Enc. Law, 329.

One who sows, cultivates, and harvests a crop upon the land of another is entitled to the crop as against the owner of the land, whether he came into possession of the land lawfully or not, so long as he remains in possession until crop is harvested. Gunderson v. Holland, 22 N.D. 258, 133 N.W. 546; Golden Valley Land & Cattle Co. v. Johnstone, 21 N.D. 101, 128 N.W. 691, Ann. Cas. 1913B, 631; Olson v. Huntamer, 6 S.D. 364, 61 N.W. 479; Sornberger v. Berggren, 20 Neb. 399, 30 N.W. 413; Johnston v. Fish, 105 Cal. 420, 45 Am. St. Rep. 53, 38 P. 979; Groome v. Almstead, 101 Cal. 425, 35 P. 1021; Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462; Huerstal v. Muir, 64 Cal. 450, 2 P. 33; Martin v. Thompson, 62 Cal. 618, 45 Am. Rep. 663; Dollar v. Roddenbery, 97 Ga. 148, 25 S.E. 410; Lindsay v. Winona & St. P. R. Co. 29 Minn. 411, 43 Am. Rep. 228, 13 N.W. 191; Adams v. Leip, 71 Mo. 597; Jenkins v. McCoy, 50 Mo. 348; Harris v. Turner, 46 Mo. 438; Morgner v. Biggs, 46 Mo. 65; Boyer v. Williams, 5 Mo. 335, 32 Am. Dec. 324; Edwards v. Eveler, 84 Mo.App. 405; McAllister v. Lawler, 32 Mo.App. 91; Stockwell v. Phelps, 34 N.Y. 363, 90 Am. Dec. 710; Hinton v. Walston, 115 N.C. 7, 20 S.E. 164; Faulcon v. Johnston, 102 N.C. 264, 11 Am. St. Rep. 737, 9 S.E. 394; Ray v. Gardner, 82 N.C. 454; Brothers v. Hurdle, 32 N.C. (10 Ired. L.) 490, 51 Am. Dec. 400; Phillips v. Keysaw, 7 Okla. 674, 56 P. 695; Churchill v. Ackerman, 22 Wash. 227, 60 P. 406.

Defendants are not entitled to recover on their counterclaim. This is an action against the landowner for converting the crop after he had served notice of cancelation of the sale contract. He seeks to counterclaim the balance of the purchase price, under such contract. His counterclaim did not arise out of the "transaction," nor is it connected with the "subject-matter of this action." Warren v. Ward, 91 Minn. 254, 97 N.W. 886; Gillilan v. Oakes, 1 Neb. (Unof. ) 55, 95 N.W. 511; Shenners v. Pritchard, 104 Wis. 287, 80 N.W. 458; Thompson v. Howard, 31 Mich. 309; McNutt v. Hilkins, 80 Hun, 235, 29 N.Y.S. 1047; Welsh v. Carder, 95 Mo.App. 41, 68 S.W. 580.

The defendant elected as to his remedy, and he cannot rescind or repudiate his action in so doing. He canceled the contract; therefore he is not entitled to recover in any action the balance of the purchase price. The rescission terminates the rights of the parties to the contract. Rev. Codes 1905, § 5380; 39 Cyc. 1399; Warren v. Richmond, 53 Ill. 52; Rowe v. Rowe, 5 Ill.App. 331; Chrisman v. Miller, 21 Ill. 227; Little v. Thurston, 58 Me. 86; Frost v. Frost, 11 Me. 235; Winter v. Livingston, 13 Johns. 54; Icely v. Grew, 6 Nev. & M. 467; Harvey v. Wiens, 16 Manitoba L. Rep. 230; Fraser v. Ryan, 24 Ont. App. Rep. 441; Sterman v. Thornton, 3 Ky. L. Rep. 540; Johnson v. Jackson, 27 Miss. 498, 61 Am. Dec. 522.

In fact the plaintiff might well claim the return of that portion of the purchase price already paid. Drew v. Pedlar, 87 Cal. 443, 22 Am. St. Rep. 257, 25 P. 749; Harris v. Catlin, 37 Tex. 581; Houston v. Killough, Tex. , 13 S.W. 959; Staley v. Murphy, 47 Ill. 241; Castle v. Floyd, 38 La.Ann. 583; Milligan v. Ewing, 64 Tex. 258; Conrad v. Grand Grove, U. A. O. D. 64 Wis. 258, 25 N.W. 24; Hamill v. Thompson, 3 Colo. 518, 14 Mor. Min. Rep. 690; Davis v. Smith, 5 Ga. 274, 48 Am. Dec. 279; Frink v. Thomas, 20 Ore. 265, 12 L.R.A. 239, 25 P. 717.

Defendant who has tortiously obtained possession of personal property cannot, in trover for its conversion, show in mitigation of damages that he sold it and applied the proceeds to a just debt of plaintiff. East v. Pace, 57 Ala. 521; Marin v. Satterfield, 41 La.Ann. 742, 6 So. 551; Northrup v. McGill, 27 Mich. 234; Sprague v. McKinzie, 63 Barb. 60; Lyon v. Yates, 52 Barb. 237; Ball v. Liney, 48 N.Y. 6, 8 Am. Rep. 511, affirming 44 Barb. 505; Mississippi Mills v. Meyer, 83 Tex. 433, 18 S.W. 748; 38 Cyc. 2103, and cases contained in note 13; Pierce v. Schenck, 3 Hill, 28; 3 Sutherland, Damages, 483.

The law does not permit the wilful and arbitrary conversion of property as a method of satisfying or offsetting mutual claims. Carpenter v. Manhattan L. Ins. Co. 93 N.Y. 552; Ball v. Liney, 48 N.Y. 6, 8 Am. Rep. 511.

OPINION

BRUCE, J.

Statement

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 cancelation of the contract, claiming that the $ 1,000 instalment 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 thirty 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,...