Schweinber v. Great Western Elevator Co.
| Decision Date | 22 November 1899 |
| Citation | 81 N.W. 35,9 N.D. 113 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes County; Glaspell, J.
Action by Constantine Schweinber against the Great Western Elevator Company. Judgment for plaintiff. Defendant appeals.
Affirmed.
P. H Rourke, for appellant.
Winterer & Winterer, for respondent.
Action in conversion by a mortgagee of certain wheat grown upon certain land in the year 1897. Complaint in usual form. Answer in denial, except that the defendant admits that at the time specified it purchased certain wheat of the mortgagor, and paid him therefor. Defendant introduced no testimony, but at close of plaintiff's testimony moved for a directed verdict in its favor. Motion denied, and the court of its own motion directed a verdict for plaintiff. From the judgment entered upon the verdict, defendant appeals to this court.
Certain errors of law are specified, the first being the overruling of defendant's objection made at the opening of the case to the introduction of any testimony, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. We have held at this term ( Chilson v. Bank, 9 N.D. 96, 81 N.W. 33) and it is well sustained, that this form of objection is not good. It points out no defects in the complaint, gives the court no opportunity to order an amendment, and gives plaintiff no opportunity to amend voluntarily. At that stage of the case the court cannot stop all proceedings until it can critically examine a complaint, however long, however involved and technical, to see that it contains every required averment. If a defendant elect to defer his attack upon the pleading until the taking of testimony is reached he must make his objection specific.
The second error of law urged relates to the admission of certain testimony touching the grade of the wheat. It is claimed that the testimony was incompetent, because the grade was fixed at a mill, and not at an elevator. We know of no reason why one is not as competent as the other. There is no suggestion that there is any difference in the grades, whether made at the mill or at the elevator.
The third assigned error of law is based upon the rulings on the motion for verdict. No grounds for the motion were assigned and we do not intend to pass upon its legal sufficiency, but assume...
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