Schlosser v. Moores
| Decision Date | 04 May 1907 |
| Citation | 112 N.W. 78,16 N.D. 185 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Steele County; Pollock, J.
Action by George Schlosser against C. S. Moores. Judgment for defendant, and plaintiff appeals.
Reversed.
Order reversed, and a new trial ordered.
Styles & Koffel, for appellant.
Appellant has a valid lien on the whole crop of both flax and wheat for the whole contract price of seed for both. 20 Enc. Law (2nd Ed.) 286; Hooven v. Featherstone, 99 F. 180; Dunlop v. Kennedy, 34 P. 92; Aurand v Martin, 58 N.E. 926; Bowman Lumber Co. v Newton, 33 N.W. 377; Lewis v. Saylors, 35 N.W 601; Williams v. Judd-Wells Co. et al., 59 N.W. 271; Meixell v. Greist, 40 P. 1070; North & South Lum. Co. v. Hegwer, 42 P. 388; Mulvane v. Chicago Lbr. Co., 44 P. 613; Johnson v. Salter, 72 N.W 974; Wakefield v. Latey, 57 N.W. 1002.
Also for the whole of the seed furnished, whether sown or not. 20 Enc. Law (2nd Ed.) 347; Central Trust Co. v. Chicago R. Co., 54 F. 598; Neilson v. Iowa Eastern R. R. Co., 1 N.W. 434; Lee v. Hoyt, 70 N.W. 95; Hickey v. Collum, 50 N.W. 918; Burns v. Sewell, 51 N.W. 224; Stewart-Chute Co. v. Mo. P. Lumber Co., 44 N.W. 47; Weir v. Barnes, 57 N.W. 750; Woolsey v. Bohn, 42 N.W. 1022; Foster v. Dohle, 24 N.W. 208; Irish v. Pheby, 44 N.W. 438; Pomeroy v. White Lake Lbr. Co., 49 N.W. 1131; Bogue v. Guthe, 74 N.W. 588; Lemay v. Johnson, 35 Ark. 225; Knowles v. Sell, 21 P. 102.
C. S. Shippy, for respondent.
Appellant's lien attached to the crop produced from the particular kind of seed furnished, and not otherwise. This is supported by similar holdings in other classes of liens. Badger Lumber Co. v. Holmes, 62 N.W. 446; Byrd v. Cochran, 58 N.W. 127; Doolittle v. Plenz, 20 N.W. 116.
No valid lien can be acquired for seed furnished which is diverted to other than seeding purposes. Nash v. Brewster, 41 N.W. 105; Wallace v. Palmer, 30 N.W. 445.
Plaintiff, claiming to have a seed lien upon certain wheat described in the complaint, brought this action to recover damages for the alleged conversion thereof by defendant. A verdict was directed in defendant's favor by the trial court, and from an order denying plaintiff's motion for a new trial he appeals to this court, and assigns as error the rulings of the district court in directing such verdict and in denying the motion for a new trial.
The facts are not in dispute, and, briefly stated, are as follows: On or about April 13, 1902, plaintiff, under a verbal contract, sold to one Saunders 200 bushels of seed wheat at 75 cents per bushel and 60 bushels of seed flax at $ 2 per bushel; such seed grain to be sown on the real property described in the complaint. On or about June 18, 1902, plaintiff filed in the proper office a verified statement for the purpose of perfecting a lien upon the crops produced from such seed, pursuant to the provisions of sections 6271, 6272, Rev. Codes 1905. This statement sets forth the number of bushels and the price per bushel of each kind of seed furnished, and in all other respects complies with the law, except that one lien is claimed for the entire purchase price of both kinds of seed upon the crops indiscriminately. Of the 200 bushels of wheat so furnished Saunders seeded only about 94 bushels, and only about 75 bushels grew and produced a crop. It does not appear how much flax seed was sown. Certain payments were made and applied on the purchase price of this seed grain, leaving a balance unpaid of $ 98.39. Of the crop of wheat produced by Saunders, defendant received into his elevator and converted about 200 bushels of the value, at the time of the conversion, of about $ 130. The chief controversy between the parties arises over the construction to be given the so-called "seed lien statute" aforesaid, and the contract under which plaintiff furnished the seed, for the purchase price of which he claims a lien. The statute governing seed liens is as follows:
No question is raised as to the validity of plaintiff's lien, provided the contract under which the seed was sold is an entire, indivisible contract, and provided, also, that a lien may be perfected under the statute in question upon both kinds of crops indiscriminately to secure the purchase price of all the seed so furnished. The respondent's counsel contends, first, that the lien is invalid for the reason that under the statute, as he construes the same, a lien can be claimed only upon each specific kind of grain for the purchase price of the seed which produced such kind, and hence he argues that it is impossible to acquire a valid lien where two or more kinds of seed are sold under one entire contract; second, that, should it be held that the lien as filed is sufficient under the statute, it is divisible and must be construed as two liens, one upon the wheat for the purchase price of the seed wheat, and the other upon the flax for the purchase price of the seed flax; and, third, that no valid lien can be acquired for a greater amount than the value of the seed grain actually sown and which actually produced a crop, and, if this be true, he contends that under the undisputed evidence sufficient payments had been made, so as to leave nothing due plaintiff under his lien at the date of the alleged conversion.
The first proposition advanced by respondent's counsel is not free from doubt, and counsel upon both sides concede their inability to find any authorities directly in point. Many cases may be found decided under statutes somewhat similar to the one here involved, such as statutes creating threshers', laborers', landlords', and mechanics' liens; but all, except perhaps the latter kind, are clearly different, in so far as the point here involved is concerned. The case of Mitchell v. Monarch El. Co., 15 N.D. 495, 107 N.W. 1085, involving a thresher's lien, sufficiently illustrates such difference. Under the threshers' lien law, the thresher, upon compliance with the statute, is given a lien upon all the grain threshed by him, and it is unnecessary to state in his lien statement the kinds of grain threshed. Under the seed lien statute, it will be observed that not only the quantity, but the kind, of seed furnished must be stated, together with its value, the name of the person to whom furnished, and a description of the land upon which the same is to be or has been sown. It is argued by respondent's counsel that, because the kind of seed is required to be stated, it was the legislative intent that a lien could be claimed only upon each specific kind of grain for the purchase price of the seed which produced that kind, and he makes a very plausible argument in support of such contention; but we think this too narrow a construction to give this statute. We do not think the legislature had any such object in mind in enacting the second section of such law. This section prescribes what the lien statement shall contain, and we do not believe that the question as to whether an entire, indivisible lien may be acquired on several kinds of grain to secure the purchase price of several kinds of seed sold under one entire and indivisible contract was in the minds of the legislators at all when they enacted this section. Their object in enacting this lien statute, no doubt, was to encourage the sale of seed grain on time and to afford security for the purchase price thereof, not only as against the owner of the crops produced therefrom, but as against creditors of such owner and persons purchasing from him; and therefore it was the legislative intent, in requiring the vendor of seed grain to set forth in his lien statement the various matters therein required to be stated, to prevent the privilege thus given such vendors from being used as a cover for fraud, as well as to impart notice to the public of the facts therein required to be stated. To this end such person is required to state the kind and amount of grain furnished, its value, etc., and to file such statement in the office of the register of deeds of the county, so that creditors and all persons dealing with the owner of the crop produced from the seed may have knowledge of the contract between the parties and the extent of the rights claimed under such lien by the vendor of the seed so furnished. Kelly v. Seely, 7 N.W. 821, 27 Minn. 385; Aurand v. Martin, 188 Ill. 117, 58 N.E. 926.
If we are correct in this, then the provisions contained in the second section furnish no light upon the point here involved. Neither does the other section furnish any light upon the question. It merely gives a lien upon all the crop produced from the seed so furnished. It apparently was not contemplated that several kinds of seed might be furnished under one contract, yet this may frequently be done; and in such a case, if the contract is entire and...
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