Stair v. Marquart
| Decision Date | 10 May 1920 |
| Citation | 178 N.W. 121,45 N.D. 384 |
| Court | North Dakota Supreme Court |
Action in District Court, Logan County, Graham, J.
From a judgment rendered for the plaintiffs upon a directed verdict the defendant has appealed.
Affirmed.
Judgment affirmed, with costs to the respondents.
A. B Atkins and W. S. Lauder, for appellant.
The jury are the sole and exclusive judges of the weight of the testimony, the credibility of the witnesses, and of the facts. Taylor v. Jones, 3 N.D. 236.
The court will not direct a verdict, even where there is no conflict in the testimony, if the evidence is such that different minds may reasonably draw different conclusions therefrom. Clemens v. Royal Neighbors, 14 N.D. 116; Boughton Implement Co. v. Vavrowski (N.D.) 125 N.W 1024; Edwards v. Chicago & R. Co. 21 S.D. 504; Hall v. N. P. R. Co. 16 N.D. 60; Walkin v. Horswill (S.D.) 123 N.W. 668; Berry v. Chicago etc., Ry. Co. (S.D.) 124 N.W. 859; Casey v. First Nat. Bank (N.D.) 126 N.W. 1011.
Where there is a conflict in the evidence, the verdict of the jury is conclusive on the supreme court, as that court will not weigh the evidence, and will go no further than to determine whether there was legal evidence sufficient to sustain the verdict, without regard to the evidence of the adverse party. Olson v. Day, 23 S.D. 150; Mosteller v. Holborn, 20 S.D. 545; Grant v. Powers Dry Goods Co. 23 S.D. 195; Jackson v. Grand Forks, 140 N.W. 718.
Scott Cameron and George M. McKenna, for respondents.
The court was authorized to direct a verdict at the close of the case, as both parties moved for a directed verdict. Stanford v. McGill, 6 N.D. 563; First Methodist Episcopal Church v. Fadden, 8 N.D. 162; Duncan v. Great Northern R. Co. 17 N.D. 610; Bank of Park River v. Norton, 12 N.D. 497; Larson v. Calder, 16 N.D. 248; Citizens Nat. Bank v. Osborne-McMillan Elev. Co. 21 N.D. 335.
Statement.
--This is an action to recover the proceeds of a carload of oats paid by mistake to the defendant. The defendant, in its answer, made a general denial of plaintiff's claim, and, as a counterclaim, alleged that two carloads of wheat were shipped to and received by the defendant for which payment had not been made.
The facts substantially are:
During the years of 1915 and 1916 the defendant operated an elevator at Napoleon, North Dakota; the plaintiffs were copartners in the grain commission business, at Minneapolis and Duluth. Throughout 1915 and 1916 the defendant shipped grain in carload lots to the plaintiffs. Customarily such shipments were made under bills of lading, which were forwarded to the plaintiffs.
Upon the sale of a carload shipment, an account of the sale was rendered, itemizing the gross and net proceeds, together with a state weigh master's certificate and train inspector's certificate thereupon. Monthly, a statement was rendered covering the grain, the proceeds thereof, and the accounting therefor including interest items pro and con.
On January 19, 1916, the defendant was credited on the books of the plaintiffs with the proceeds of car No. 206,133, amounting to $ 630.36. Pursuant to plaintiffs' books, and a statement rendered to the defendant showing a balance due of $ 4,391.81, this item, included with other items, was finally paid to the defendant the latter part of August, 1916. Subsequently, it was discovered (per plaintiffs' evidence) that this car No. 206,133 was a carload of oats, and had been shipped to the plaintiffs by one Decker. Accordingly, on February 10, 1917, the plaintiffs charged to the account of the defendant the proceeds of such car, amounting to $ 630.36, and, on the same date, credited to the account of Decker such amount including an adjustment for the interest. The defendant admits that he never shipped any oats to the plaintiffs, and that a settlement was made on the account between the parties through payment of said $ 4,391.81 by the plaintiffs. However, in defendant's parol evidence, it is categorically denied that they ever received, in fact, any credit for this carload of oats; that the monthly statement rendered for January, 1916, to the defendant did not show this carload of oats, and that the settlement made by which the amount above stated was received covered only what was due the defendant, excepting only the two carloads of wheat.
In the operation of the defendant's elevator, a book was kept which shows the grain bought or sold, and the carload shipments of grain to the plaintiffs; also, a book containing bills of lading in blank form, which customarily the defendant made out, when carload shipments were made, in triplicate form,--one of which was sent to the plaintiffs, one retained by the railroad, and the third by the defendant. In support of their claim, the plaintiffs introduced in evidence their books of account with the defendant from beginning to end, the account of said Decker, the evidence of their traveling auditor concerning attempts to adjust this matter with the defendant, and that of their bookkeeper concerning their books, and in explanation of the particular item concerning the carload involved herein.
In support of his counterclaim, the defendant introduced his triplicate copy of a bill of lading, dated November 12, 1915, showing the shipment of a carload of wheat, weight 60,000 lbs., in car No. 184,474 to the plaintiffs; also another bill of lading, dated November 15, 1915, showing a shipment of a car of wheat, weight 80,000 lbs. in car No. 265,610 to the plaintiffs; also is books of account showing the shipment of such carload to the plaintiffs on such respective dates for which no settlement had been made; also the value of such carloads of wheat. Concerning these car numbers of such carloads of wheat, there is a dispute in the evidence between the parties.
As stated, the books of the defendant show the shipment of these two carloads bearing such car numbers on November 12, and 15th, 1915, respectively. Likewise, his book of the bills of lading. They do not, however, show the shipment of any other carloads of wheat to the plaintiffs on these respective dates. The defendant's parol evidence is to the effect that these car numbers had been erased or rubbed out, and that the plaintiffs' auditor had so erased and replaced such car numbers as they originally existed. This is absolutely denied by the plaintiffs' auditor.
The agent of the Soo Railway Company, having in his possession the railway company's bill book of weigh bills, testified that, on November 12, 1915, there was only one car shipped by the defendant to the plaintiffs, being a carload of wheat weight 60,000 lbs. in Soo car No. 24,474; that, on November 15, 1915, there was only one car shipped by the defendant to the plaintiffs, being a carload of wheat weight 80,000 lbs. in C. P. car No. 208,640; that on November 12, 1915, no such car as No. 184,474 was shipped out of the station at Napoleon; that on November 15, 1915, no such car as C. P. car No. 265,610 was shipped out of such station on that date. On the consignment sheets of the plaintiffs, which show the consignments received from the defendant, it appears that the carload No. 24,474, shipped November 12, 1915, was sold November 19, 1915; that likewise the carload No. 208,640, shipped on November 15, 1915, was sold on November 22, 1915. On the books of the plaintiffs, on November 24, 1915, the proceeds of carload No. 24,474, in the amount of $ 760.70, and, of carload No. 208,640 in the amount of $ 865.72, were credited. That these amounts were paid the defendant in the settlement had with the defendant. The defendant's books do not show any shipment...
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