Sorlie v. Manthey
| Decision Date | 14 February 1927 |
| Docket Number | No. 5169.,5169. |
| Citation | 55 N.D. 71,212 N.W. 400 |
| Parties | SORLIE v. MANTHEY et al. |
| Court | North Dakota Supreme Court |
In an action to recover the possession of personal property, on the claim of ownership, the plaintiff can recover only on the strength of his own title, and any evidence which tends to disprove ownership is material and competent for that purpose.
Appeal from District Court, Traill County, A. T. Cole, Judge.
Action by O. J. Sorlie against G. A. Manthey and another. From a judgment for defendants, and an order denying plaintiff's motion for judgment notwithstanding a verdict or for a new trial, plaintiff appeals. Affirmed.Kaldor & Johnson, of Hillsboro, for appellant.
P. G. Swenson and I. A. Acker, both of Hillsboro, for respondents.
This is an action to recover the possession of certain personal property described in the complaint. The plaintiff alleges in his complaint that he is the owner of said property and entitled to its immediate possession, that the same is wrongfully detained from said plaintiff, by defendants, and that it is of the value of $1,000. At the time of the issuing of the summons and complaint, the plaintiff attached thereto the affidavit and bond required in claim and delivery.
The defendants, in their answer, deny that the plaintiff is the owner of said property and allege that the said property, together with other property, was rightfully in the possession of the defendants. After the taking of said property in claim and delivery, the plaintiff disposed of it by sale.
The case was tried to a jury, and the following verdict was returned:
“We, the jury, in the above-entitled action, find in favor of the defendants and against the plaintiff for a return of the property claimed, or, in case a return cannot be had, the value thereof in the sum of $853.28.”
Judgment was duly entered thereon, and the plaintiff appeals from the judgment and from an order denying plaintiff's motion for judgment notwithstanding the verdict, or for a new trial of said action.
It is the contention of the plaintiff that he purchased from the defendants, and paid for the said property by crediting the said defendants on an account for an indebtedness which they owed him. In support of this claim, he offered evidence tending to prove the purchase and sale and the credit which he claims he gave them on the indebtedness, which he testified was owing to him from the defendants. On the other hand, the defendants offered proof showing that all their transactions had been settled and that they did not owe the plaintiff anything, and while there was an offer to purchase on the part of the plaintiff and an offer to sell by the defendants, when they came to the question of payment there is a direct conflict; the plaintiff claiming that he was to pay for the property by giving the defendants credit on an indebtedness, and the defendants claiming that there was no indebtedness between the parties and the sale was to be for cash.
It is the further contention of the plaintiff that, in an action to recover the possession of personal property, possession is the gist of the action, and that it was error to permit the defendants to testify to settlements and business transactions between the parties. It is true that the right to possession is the gist of the action, but, in the instant case, the plaintiff's right to possession depends upon his ownership, and his ownership depends upon whether he purchased the property from the defendants, and it would be a strange rule of law that would permit the plaintiff to prove his case by showing the transactions between the plaintiff and the defendants, under which he claims the indebtedness arose, and that would, at the same time, prevent the defendants from showing that all transactions between the parties had been settled, and that the defendants were not indebted to the plaintiff in any sum whatever. In an action for the possession of personal property where the plaintiff's only claim to the right of possession is ownership, he must prove that ownership as against all the world, and any testimony which goes to disprove the ownership of the plaintiff is relevant and material. He must stand on his own title, and any defense going to impeach his title is proper. Cobbey on Replevin, § 784. He must recover, if at all, on the strength of his own title. Dixon v. Ladd, 32 S. D. 163, 142 N. W. 259, 46 L. R. A. (N. S.) 206, Ann. Cas. 1916A, 253;Plano Mfg. Co. v. Daley, 6 N. D. 330, 70 N. W. 277;Russell & Co. v. Amundson 4 N. D. 112, 59 N. W. 477;Pitts. Agl. Works v. Young, 6 S. D. 557, 62 N. W. 432.
The testimony showing the business transactions and settlement objected to, and of which the plaintiff complains, was all materialfor the purpose of disproving the ownership of the plaintiff. In the instant case, the plaintiff's claim of the right to possession is confined to the one question of ownership, and the case was tried on that theory.
On cross-examination, plaintiff is asked this question (page 23 of the transcript), “Did you have a settlement with them (the defendants) about the 1st of March, 1924?” and plaintiff's attorney objected on the ground that it was “irrelevant, incompetent, and immaterial; does not go to prove ownership.”
On page 25 of the transcript, plaintiff's attorney states:
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