Sanford v. Duluth & Dakota Elevator Co.

• Decision Date: 17 March 1891
• Citation: 48 N.W. 434,2 N.D. 6
• Court: North Dakota Supreme Court

48 N.W. 434

2 N.D. 6

SCOTT N. SANFORD, Plaintiff and Respondent, v. DULUTH & DAKOTA ELEVATOR COMPANY, Defendant and Appellant

Supreme Court of North Dakota

March 17, 1891

APPEAL from district court, Ransom county. Hon. W. S. LAUDER, Judge.

Action for value of wheat, alleged to have been converted by defendant. Judgment for plaintiff. Reversed and new trial ordered.

Judgment reversed, and a new trial granted.

A. C Davis, for appellant.

Rourke & Allen and Goodwin & Van Pelt, for respondent.

OPINION

WALLIN, J.

This is an action to recover the value of certain wheat covered by plaintiff's chattel mortgage. The complaint charges in effect that plaintiff is the mortgagee and owner of a chattel mortgage executed by one Carl Kruger and wife, and covering the grain in question; that the mortgage was duly filed in the office of the register of deeds of Ransom county, in which the wheat was raised, and in which all the transactions in question occurred; and also "that, while said mortgage remained in force and unsatisfied, and on or about the 3d day of October, 1889, the defendants wrongfully and unlawfully took possession of the whole of said one hundred and ninety-four bushels of wheat, and wrongfully and unlawfully converted the same to their own use." The complaint further charges, in substance, that the defendants unlawfully detain the wheat in Ransom county, and "that said plaintiff has caused to be demanded of said defendants of each and both of them, the delivery and possession thereof, before the commencement of this action; but said defendants refused, and still refuse and neglect, to deliver the same, or any part thereof, to the plaintiff." Judgment is demanded for the value of the wheat and interest, but not for a return of the property. After admitting that the defendant is a corporation, the defendant the elevator company answers as follows: "And, further answering, the defendant denies any knowledge or information of the allegations of the complaint (except as above admitted) sufficient to form a belief." At the trial the execution, delivery, and filing of the chattel mortgage were shown, and that the debt secured by it was due and unpaid. The evidence relied upon to show conversion is epitomized as follows: "That on the 3d day of October, 1889, the mortgagors delivered to the defendant the Duluth & Dakota Elevator Co., one hundred and ninety-four bushels of the wheat described in the mortgage; that said defendant received and took the same into its elevator at Sheldon, N. D., and by its duly authorized agent issued tickets or warehouse receipts therefor in the name of the mortgagor, Carl Kruger; that said defendant, by the direction of said Kruger, delivered said tickets to the defendant Bell, who claimed the wheat represented thereby; that said Bell presented said tickets for payment to E. B. Bruce, the paying agent of said elevator company, and received from him in payment therefor, on October 3 or 4, 1889, the sum of one hundred and thirty-four dollars and twenty cents." There was no competent evidence of actual notice to defendant of the existence of the mortgage, and the agent who received the wheat, and the agent who cashed the wheat tickets, both testified that they knew nothing of the mortgage when the wheat was received and paid for. No demand or refusal to deliver the wheat was shown at the trial, and it is conceded that no demand was ever made upon the elevator company. At the close of the testimony the defendant the elevator company moved the court to direct a verdict in its favor upon the ground that there was no evidence to justify a verdict against such defendant, and specifying the following points: "First, there is no evidence to show any conversion by said defendant of the property in question; second, there is no evidence of any demand made upon said defendant for the property in question before the commencement of the action." The motion was denied, and said defendant excepted to the ruling. The said defendant then asked the court to submit to the jury the question of the conversion of the property in controversy, and to instruct the jury as to the law upon the subject. The court refused to so instruct the jury, and assigned as a reason for such a refusal that the undisputed testimony showed that the wheat in question was converted by said defendant. Defendant excepted to such ruling. The case was given to the jury, and the verdict and judgment were for the plaintiff. There was a bill of exceptions settled and filed, which was annexed to the judgment roll. The defendant the elevator company without moving for a new trial in the court below, appeals from the judgment. The only errors assigned in this court which are insisted upon are the following: First, the court erred in refusing the motion of the defendant the Duluth & Dakota Elevator Company to direct a verdict in favor of said defendant; second, the court erred in refusing to submit to the jury the question of the conversion of the property in question, and in refusing to instruct the jury as to the law upon that subject.

In this court respondent's counsel raise the preliminary question that the court cannot consider either of the errors assigned, for the reason that no motion for a new trial was made in the court below. Counsel say: "The question whether there is sufficient evidence to go to the jury involves a review of that evidence. If the appellant desires a review of the facts, a motion for a new trial in the district court was necessary." This contention is untenable. The errors assigned are clearly such as the statutes classify as "errors of law occurring at the trial," and no question of fact is sought to be reviewed. It is true that such errors may be urged as grounds for a new trial, but that remedy is not exclusive, but, on the contrary, it is well settled that the remedy by motion for a new trial for such errors is concurrent with that of appeal from the judgment. Of course the errors must appear upon the judgment roll, and such errors cannot be made to appear without incorporating a bill with the judgment roll, which was done in this case. Our statutes regulating exceptions and new trials are in the main copied from those of the state of California, and the decisions from that state are decisive upon the point in discussion. Cravens v. Dewey, 13 Cal. 40; Walls v. Preston, 25 Cal. 59; Donahue v. Gallavan, 43 Cal. 573; Caldwell v. Parks, 47 Cal. 640; Levy v. Getleson, 27 Cal. 685; Hayne, New Trials and App. p. 311, § 112. In California the practice of directing nonsuits prevails; but such practice, so far as the question we are considering is concerned, is substantially the same as directing a verdict. In both cases the court passes upon the legal sufficiency of the evidence to warrant a judgment. Marshall v. Manufacturing Co., 1 S.D. 350, 47 N.W. 290; Hayne, New Trial & App. p. 284, § 100. Errors of law were reviewed in the late territorial court without a motion for a new trial. Nichols v. Bruns, (Dak.) 5 Dakota 28, 37 N.W. 752. Section 5094, Comp. Laws, also indicates that a bill of exceptions not used on a motion for a new trial may be used on appeal from a final judgment. Respondent cites Reed v. Bernal, 40 Cal. 628. The case is not in point. It simply holds that the supreme court of California will not examine the evidence to see whether the findings of fact are supported by the evidence without a motion for a new trial. In the case at bar the errors assigned are errors of law. See authorities, supra. When the rulings were made which are assigned as error in this court no findings of fact had been made in the trial court. Darst v. Rush, 14 Cal. 81; Sullivan v. Cary, 17 Cal. 80.

The more serious question arises from the non-demand of the wheat before the action was brought. Respondent's counsel contend that no demand was necessary, first, because, as he claims, the answer, by its general denial, shows that a demand would be unavailing. We cannot so construe the answer. It alleges neither title nor right of adverse possession in the defendant. It simply puts the plaintiff upon his proofs. Plaintiff alleges that the property is covered by his chattel mortgage, and that the defendant has unlawfully converted it and has refused to deliver it after demand. The issue joined by the answer only puts the plaintiff upon his proof as to the allegations of the complaint. The answer pleads no right in the defendant adverse to the rights of a mortgagee under a chattel mortgage. Nor does the evidence show that the defendant the elevator company has at any time assumed absolute dominion over the property as against plaintiff, or has done any act inimical to the rights of the plaintiff as a mortgagee, unless the purchase is inimical. But counsel argue that no demand was necessary, because, as they claim, the conceded facts show a conversion by the elevator company before suit commenced. It is true that no demand before suit would be necessary if the elevator company had, before suit brought, done any act with respect to the grain inconsistent with plaintiff's rights as a mortgagee. Counsel cite Phillip Best Brewing Co. v. Pillsbury & H. El. Co., 5 Dakota 62, 37 N.W. 763, and Nicholas v. Barnes, 3 Dakota 148, 14 N.W. 110. But these cases are not in point, because in the cases cited the evidence showed affirmatively that the defendants had converted the grain--in one case by selling if, and in both cases by mixing it with their own grain, or with that of other persons, in a common mass. In the case at bar there is no such showing. On the contrary, the evidence tends to show that the grain is in the defendant's elevator, and there is not a scintilla of testimony that defendant had mixed it with other grain, sold it, or done any other...