State Bank of New Salem v. Bismarck Elevator & Inv. Co.

• Decision Date: 07 June 1915
• Court: North Dakota Supreme Court
• Parties: STATE BANK OF NEW SALEM v. BISMARCK ELEVATOR & INV. CO.

31 N.D. 102

153 N.W. 459

STATE BANK OF NEW SALEM

v.BISMARCK ELEVATOR & INV. CO.

Supreme Court of North Dakota.

June 7, 1915.

Syllabus by the Court.

Circumstantial evidence is equally competent in civil and criminal cases.

Whether there is any legal evidence in the record, upon which a verdict for the party holding the burden of proof can be based, is a question of law to be determined by the court.

If there is such evidence as would cause reasonable men to draw different conclusions, the case should be submitted to the jury.

But a mere surmise or suspicion will not require a submission to a jury, or sustain the refusal, on the part of the trial court, to grant a nonsuit and take the case from the jury.

Appeal from District Court, Mercer County; Crawford, Special Judge.

Action by the State Bank of New Salem against the Bismarck Elevator & Investment Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.H. L. Berry, of Stanton, for appellant. Geo. I. Reimestad and Thorstein Hyland, both of Stanton, for respondent.

CHRISTIANSON, J.

This is an action in conversion. Plaintiff sues to recover the value of certain wheat grown during the year 1912, on certain lands in Mercer county, covered by a crop mortgage executed to the plaintiff by one Ankarberg on October 30, 1911. The complaint is in the usual form, and alleges that Ankarberg raised a large amount of grain upon the land described in the mortgage during 1912, and that the defendant,on or about October 9, 1912, wrongfully appropriated and converted this grain to its own use. The answer puts in issue all the allegations of the complaint.

The evidence shows that the plaintiff had a mortgage on the crops grown during the year 1912, on the N. W. 1/4 of section 30, township 144, range 84, in Mercer county, securing an indebtedness of $400, of which only $132.01 had been paid. In September, 1912, 776 bushels of wheat were threshed on this land. There were two grain markets which could be reached by going in an easterly direction from the land, namely, Deapolis and Ft. Clark. The defendant owned and operated the elevator at Deapolis in the fall of 1912. A witness for the plaintiff testified that in September, 1912, he saw Ankarberg load one or two loads of grain on this land, and haul the same in an easterly direction over the road which would lead either to Deapolis or Ft. Clark, but he disclaims any knowledge as to whether the grain was hauled to one place or the other.

One Thue, who operates a store at Deapolis, was called as a witness for the plaintiff, and testified that during the fall of 1912, he saw Ankarberg haul some grain to Deapolis. Where such grain came from or what it consisted of, he does not say, and of this fact apparently he has no knowledge. Thue also testified that he cashed certain grain checks given to Ankarberg by the defendant company, aggregating in all $234.50. He further states that he cannot say what kind of grain these tickets were given for. There is no evidence to show whether or not Ankarberg farmed other lands, or raised other grain that year, except that it does appear that he had some flax grown on some other land. There is, however, absolutely no evidence showing that Ankarberg hauled or delivered to the defendant one bushel of grain grown on the premises in question. The only evidence on which plaintiff relies to establish the fact of such delivery and the conversion of the wheat by the defendant is the testimony of one witness, to the effect that he saw Ankarberg haul one or two loads in an easterly direction toward Deapolis or Ft. Clark, and the testimony of Thue as to the cashing of certain checks. At the close of the plaintiff's case, defendant moved for a dismissal of the action on the grounds, among others, that plaintiff had failed to prove the allegations of its complaint or establish any cause of action against the defendant. This motion was also renewed, at the close of all the testimony. Both motions were denied, and exceptions saved to such rulings. The cause was submitted to the jury, which returned a verdict in favor of the plaintiff for $210. Judgment was entered pursuant to the verdict, and the appeal is taken from the judgment.

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