La Rue v. St. Anthony & D. Elevator Co.

• Court: South Dakota Supreme Court
• Writing for the Court: CORSON, J
• Citation: La Rue v. St. Anthony & D. Elevator Co., 3 S.D. 637, 54 N.W. 806 (S.D. 1893)
• Decision Date: 04 April 1893
• Parties: JOHN S. LA RUE, Plaintiff and respondent, v. ST. ANTHONY & DAKOTA ELEVATOR COMPANY, Defendant and appellant.

3 S.D. 637

54 N.W. 806

JOHN S. LA RUE, Plaintiff and respondent,

v.

ST. ANTHONY & DAKOTA ELEVATOR COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Marshall County, SD Hon. A. W. Campbell, Judge Reversed John H. Perry Geo. P. Wilson of counsel Attorneys for appellant. J. H. McCoy, H. R. Turner Attorneys for respondent. Opinion filed April 4, 1893

CORSON, J.

This was an action brought by the plaintiff, as mortgagee, to recover the value of certain wheat alleged to have been delivered by one Henry J. Dove, mortgagor, to and received by the defendant. It is alleged in the complaint that said Dove executed to the plaintiff a chattel mortgage, in which was included, among other personal property, all the wheat, grain, and other crops that should be raised on a certain quarter section of land, described in the mortgage, during the years of 1887, 1888, and 1889; that the mortgagor raised upon said land, during the year 1887, 1,200 bushels of wheat, which, under the terms of said mortgage, the plaintiff was entitled to have delivered to him on the 1st day of October, 1887; that on or about said 1st day of October the mortgagor wrongfully and fraudulently sold and delivered to said defendant 700 bushels of said wheat, of the value of $400; and that the defendant received the same, and mixed it with other wheat in its elevator, with knowledge of plaintiff’s right thereto; and that the plaintiff demanded said wheat of the defendant, and also the value or proceeds of the same, but the defendant refused to deliver the same or pay the value thereof. And the plaintiff demands judgment for $400, interest, and costs. The answer was a general denial, except as to 200 bushels, of the value of $120, which the defendant admits it purchased of said mortgagor, and which it was thereafter informed was raised upon the land described in the mortgage. The only evidence introduced on the part of the plaintiff to prove the amount of wheat delivered to the defendant raised upon said land was that of the plaintiff, who testified that he followed one load of wheat of about 50 bushels, from the land described to the elevator of defendant; the testimony of a witness, Tuck, that he drew one load of the wheat to the elevator; and the evidence of W. L. Hinkley, which, with the objections and exceptions, was as follows:

“W. L. Hinckley, sworn, and testified on part of plaintiff as follows: ‘I knew Henry J. Dove when he resided in Marshall county, about the 1st of October, 1887. I went to the elevator of the defendant in this case at Amherst, this county. I went there to get some wheat that was sold there by Dove. (Defendant objects. Witness answers:) I went there after wheat. Dove owned the wheat, I suppose. Mr. Dunn was the agent of the elevator company, the St. Anthony & Dakota Elevator Company, at Amherst, at that time. Question. Did you ascertain from Mr. Dunn the amount of the Dove wheat that had been left at that elevator? (To which question the defendant objected, for the reason that the same is incompetent, irrelevant, and immaterial, and for the further reason that no statement made by Mr. Dunn at that time would be binding upon this defendant. The court overruled said objections, and to which ruling the defendant then and there excepted.) Answer. Yes, sir. Q. You may state in what manner you ascertained the amount of wheat within the elevator at that time, or had been deposited of that Dove wheat. A. I learned from his books and from him. (To which answer the defendant moved to strike out that portion “learned from him” and all the balance, because it is wholly incompetent. The statement of Dunn would not bind the company, and the books would be the best evidence of their contents. The court denied the motion, and to which ruling the defendant then and there excepted.) Q. You may state, if you know what amount of wheat—of the Dove wheat—had been delivered to the elevator of the defendant in this case, at Amherst, at any time. A. I have got it in a book here. The amount—(The defendant objects, for the reason that it is not the best evidence, which objection the court overruled, and to which ruling the defendant then and there excepted.) A. 449 bu. and 20 lbs. He (Dunn) told me it was the Dove wheat. I have the names of the parties who took the wheat to the elevator. Took the names from the books of the elevator. A. C. Pratt drew 48 bu. and 20 lbs.; H. B. Taylor, 38 bu. and 20 lbs.; A. C. Pratt, 48 bu.; L. Smith, 41 bu.; C. A. Tuck, 45 bu. and 20 lbs.; A. C. Pratt, 46 bu.; H. B. Taylor, 38 bu. and 20 lbs.; A. C. Pratt, 55 bu.; L. Smith, 41 bu.; L. Smith, 50 bu.,—in all 450 bu. and 20 lbs. This is the book I had with me, and I made the figures on October 1, 1887. This wheat at that time was worth 48 cents per bushel. It was poor wheat. I think the wheat checks were delivered to A. Sherin. I won’t say for sure. I think so. It is so long ago.’ On cross-examination, witness testified as follows: ‘I took the names and amounts from his book. He had a book in which he took the names of the parties that drew the wheat and the amount.’”

The case was tried before a jury, and, at the close of the evidence, the defendant moved the court to instruct the jury that in no case could they return a verdict in favor of the plaintiff for a greater sum than $120. This instruction the court refused to give, and submitted the case to the jury, who found a verdict for the plaintiff for $300.55, upon which judgment was rendered in favor of the plaintiff. A motion for a new trial was made and overruled. Numerous errors are assigned, but, in the view we take of the case, it will only be necessary to consider the errors assigned as to the admission of the evidence of Hinkley, and the refusal of the court to instruct the jury as requested.

Under the allegations in the complaint and denials in the answer, it was incumbent upon the plaintiff, in order to entitle him to recover of the defendant for the value of more than 200 bushels of wheat, to establish by legal evidence that a greater amount of wheat, raised upon the land described in the mortgage, was delivered to and received by the defendant. It will be observed that, independently of the testimony of Hinkley, the evidence failed to show the delivery of wheat in excess of the amount admitted by the defendant, or that the value of the wheat was greater than the amount admitted by the defendant in his answer; hence the verdict of the jury must have been necessarily based upon the evidence of Hinkley. It will be observed that Hinkley does not assume to have any personal knowledge of the facts about which he testified, but admits that all his knowledge of the facts were such as he learned from Dunn, and from the books at the elevator. The question is therefore presented, was the evidence of Hinkley, as to the statements made...