Stavens v. The National Elevator Company, a Corporation

• Decision Date: 20 January 1917
• Citation: 161 N.W. 558,36 N.D. 9
• Court: North Dakota Supreme Court

161 N.W. 558

36 N.D. 9

G. H. STAVENS v. THE NATIONAL ELEVATOR COMPANY, a Corporation

Supreme Court of North Dakota

January 20, 1917

From a judgment of the District Court of Traill County, Pollock, J plaintiff appeals.

Affirmed.

Chas A. Lyche and F. W. Ames, for appellant.

Where the plaintiff's right to recover is contested by defendant upon a claim of superior right, defendant cannot set up a want of demand as a reason for his failure to surrender.

If he desires to rely upon the omission to make demand, he should show a willingness to surrender upon proper demand. Myrick v. Bill, 3 Dak. 284, 17 N.W. 268; Raper v. Harrison, 37 Kan. 243, 15 P. 219; Breitenwischer v. Clough, 111 Mich. 6, 66 Am. St. Rep. 372, 69 N.W. 88; Thompson v. Thompson, 11 N.D. 208, 91 N.W. 44, and cases cited; Consolidated Land & Irrig. Co. v. Hawley, 7 S.D 229, 63 N.W. 904.

The reason why a demand is necessary when a person has come into possession of a chattel lawfully and continues to hold it is because, until he refuses to deliver, there is no conversion. Sylvester v. Craig, 18 Colo. 44, 31 P. 387; Kendrick v. Beard, 90 Mich. 589, 51 N.W. 645; Proctor v. Tilton, 65 N.H. 3, 17 A. 638; McFadden v. Thorpe Elevator Co. 18 N.D. 93, 118 N.W. 242.

It is not necessary to adhere to any particular form of demand, or manner of making it, provided it clearly notifies the party on whom demand is made of just what goods are demanded. First Nat. Bank v. Minneapolis & N. Elevator Co. 11 N.D. 280, 91 N.W. 436; Rice v. Yocum, 155 Pa. 538, 26 A. 698.

Demand for payment of property alleged to have been converted is sufficient. La Place v. Aupoix, 1 Johns. Cas. 406; Guthrie v. Olson, 44 Minn. 404, 46 N.W. 853.

Conclusions must be based upon and sustained by the findings of fact, and cannot be employed to supply defects or omissions in the findings of fact. 38 Cyc. 1978, and cases cited.

H. A. Libby, for respondent.

In an action against an elevator company for conversion of grain which was taken in and paid for in the usual and ordinary course of its business, and without notice of any claim by a third person, a demand for the grain is necessary before the commencement of the action. Towne v. St. Anthony & D. Elevator Co. 8 N.D. 205, 77 N.W. 608; First Nat. Bank v. Minneapolis & N. Elevator Co. 11 N.D. 287, 91 N.W. 436; Best v. Muir, 8 N.D. 44, 73 Am. St. Rep. 742, 77 N.W. 95; Plano Mfg. Co. v. Northern P. Elevator Co. 51 Minn. 167, 53 N.W. 202; Gillet v. Roberts, 57 N.Y. 28; Citizens Nat. Bank v. Osborne-McMillan Elevator Co. 21 N.D. 335, 131 N.W. 266, and cases cited; Sanford v. Duluth & D. Elevator Co. 2 N.D. 6, 48 N.W. 434; Richmire v. Andrews & G. Elevator Co. 11 N.D. 453, 92 N.W. 819.

In such cases the filing of a general denial by way of answer is not to assert a superior right to the grain. Such answer simply challenges plaintiff to prove the allegations of his complaint. Ely v. Ehle, 3 N.Y. 506; Barrett v. Warren, 3 Hill, 348; Abernathy v. Wheeler, 92 Ky. 320, 36 Am. St. Rep. 593, 17 S.W. 858; Parker v. Middlebrook, 24 Conn. 207; Hovey v. Bromley, 85 Hun, 540, 33 N.Y.S. 400; Valentine v. Duff, 7 Ind.App. 196, 33 N.E. 529, 34 N.E. 453; Salt Springs Nat. Bank v. Wheeler, 48 N.Y. 492, 8 Am. Rep. 564; Sanford v. Duluth & D. Elevator Co. 2 N.D. 13, 48 N.W. 434; Bigelow, Lead. Cas. in Torts, 446.

The theory of the trial in the lower court, as adopted by both counsel and court, cannot be changed on appeal, but it must be preserved and followed. The plaintiff proceeded throughout the trial upon the theory that a demand for the grain was necessary, and he will not be permitted to say in the appellate court that no demand was necessary. McCabe v. NesNoyers, 20 S.D. 581, 108 N.W. 341; De Laney v. Western Stock Co. 19 N.D. 630, 125 N.W. 499, and cases there cited; Hatcher v. Northwestern Nat. Ins. Co. 106 C. C. A. 225, 184 F. 23; Houghton Implement Co. v. Vavrowski, 19 N.D. 594, 125 N.W. 1024; Poirier Mfg. Co. v. Kitts, 18 N.D. 556, 120 N.W. 558; Kepner v. Ford, 16 N.D. 50, 111 N.W. 619; Casey v. First Bank, 20 N.D. 211, 126 N.W. 1011, and cases there cited; Fifer v. Fifer, 13 N.D. 20, 99 N.W. 763; 3 Cyc. 243.

Plaintiff had ample opportunity to timely notify defendant of his claim and to save all parties from loss or litigation, but he failed to do so, and by his silence he waived any rights he had to the grain. Houghton Implement Co. v. Vavrowski, 19 N.D. 594, 125 N.W. 1024; Livingston v. Stevens, 122 Iowa 62, 94 N.W. 925; Farr v. Semmler, 24 S.D. 290, 123 N.W. 835; Kenny v. McKenzie, 25 S.D. 485, 49 L.R.A.(N.S.) 775, 127 N.W. 597; Parliman v. Young, 2 Dak. 175, 4 N.W. 139, 711; Eickelberg v. Soper, 1 S.D. 563, 47 N.W. 953; Burke v. Utah Nat. Bank, 47 Neb. 247, 66 N.W. 295; Keeney v. Fargo, 14 N.D. 419, 105 N.W. 93.

The failure of a person to speak and to act when he should forbids and precludes him to do so when he would. Branthover v. Monarch Elevator Co. 33 N.D. 454, 156 N.W. 927; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1; 2d Pom. Eq. Jur. 499, 500; Cholmondely v. Clinton, 2 Meriv. 361, 35 Eng. Reprint, 905, 16 Revised Rep. 167; Honner v. Morton, 3 Rus. Ch. 65, 38 Eng. Reprint, 500, 27 Revised Rep. 15; Selsey v. Rhoades, 1 Bligh. N. R. 1, 4 Eng. Reprint, 774, 30 Revised Rep. 1; Vigers v. Pike, 8 Clark & F. 650, 8 Eng. Reprint, 220; Odlin v. Gove, 41 N.H. 465, 77 Am. Dec. 773; Bassett v. Salisbury Mfg. Co. 47 N.H. 439; Bigelow, Estoppel, 5th ed. pp. 588, 589, 595--651.

The findings of fact are conclusive upon the parties, the same as would be the verdict of a jury, and in such cases the appellate court will not weight the evidence, but will presume that the findings are correct. F. A. Patrick & Co. v. Austin, 20 N.D. 261, 127 N.W. 109; Nilson v. Horton, 19 N.D. 187, 123 N.W. 397; Casey v. First Bank, 20 N.D. 211, 126 N.W. 1011; Acton v. Fargo & M. Street R. Co. 20 N.D. 434, 129 N.W. 225; Heffernan v. O'Neill, 1 Neb. (Unof.) 363, 96 N.W. 244; Caledonia Gold Min. Co. v. Noonan, 3 Dak. 189, 14 N.W. 426, 121 U.S. 393, 30 L.Ed. 1061, 7 S.Ct. 911; Pierce v. Manning, 2 S.D. 517, 51 N.W. 332; Jasper v. Hazen, 4 N.D. 1, 23 L.R.A. 58, 58 N.W. 454; Phillip Best Brewing Co. v. Pillsbury & N. Elevator Co. 5 Dak. 62, 37 N.W. 763; Smith v. Tosini, 1 S.D. 641, 48 N.W. 299; Paddock v. Balgord, 2 S.D. 103, 48 N.W. 840; Cannon v. Deming, 3 S.D. 431, 53 N.W. 863; Duggan v. Davey, 4 Dak. 110, 26 N.W. 887, 17 Mor. Min. Rep. 59; State ex rel. Morrill v. Massey, 10 N.D. 154, 86 N.W. 225; Nichols & S. Co. v. Stangler, 7 N.D. 102, 72 N.W. 1089; Axiom Min. Co. v. White, 10 S.D. 202, 72 N.W. 462; Magnusson v. Linwell, 9 N.D. 154, 82 N.W. 743; Flath v. Casselman, 10 N.D. 419, 87 N.W. 988; Bissonette v. Barnes, 4 N.D. 311, 60 N.W. 841; Bressler v. Stanek, 10 S.D. 625, 74 N.W. 1118; Seim v. Smith, 13 S.D. 138, 82 N.W. 390; Randall v. Burke Twp. 4 S.D. 337, 57 N.W. 4; Webster v. White, 8 S.D. 483, 66 N.W. 1145; Reid v. Kellogg, 8 S.D. 596, 67 N.W. 687; Hulst v. Benevolent Hall Asso. 9 S.D. 147, 68 N.W. 200; Farwell v. Sturgis Water Co. 10 S.D. 421, 73 N.W. 916; Reagan v. McKibben, 11 S.D. 274, 76 N.W. 943, 19 Mor. Min. Rep. 556; Christ v. Garretson State Bank, 13 S.D. 24, 82 N.W. 89; First State Bank v. O'Leary, 13 S.D. 206, 83 N.W. 45; Charles Betcher Co. v. Cleveland, 13 S.D. 349, 83 N.W. 366; Henderson v. Hughes County, 13 S.D. 582, 83 N.W. 682; Krueger v. Dodge, 15 S.D. 166, 87 N.W. 965; Caulfield v. Bogle, 2 Dak. 464, 11 N.W. 511; Herbert v. Northern P. R. Co. 3 Dak. 58, 13 N.W. 349; Moline Plow Co. v. Gilbert, 3 Dak. 255, 15 N.W. 1; Franz Falk Brewing Co. v. Mielenz Bros. 5 Dak. 145, 37 N.W. 728; Finney v. Northern P. R. Co. 3 Dak. 282, 16 N.W. 500; Hughes County v. Livingston, 43 C. C. A. 541, 104 F. 306; Eli Min. & Land Co. v. Carleton, 47 C. C. A. 167, 108 F. 25; First Nat. Bank v. Prior, 10 N.D. 146, 86 N.W. 362; Grewing v. Minneapolis Threshing Mach. Co. 12 S.D. 127, 80 N.W. 176; Hill v. Whale Min. Co. 15 S.D. 579, 90 N.W. 853; Ricker v. Stott, 13 S.D. 210, 83 N.W. 47.

CHRISTIANSON, J., ROBINSON, J.

OPINION

CHRISTIANSON, J.

In his complaint plaintiff avers that he was the owner, and entitled to the immediate possession, of certain grain; that defendant unlawfully converted the same to its own use, to plaintiff's damage in the sum of $ 1,631.84. The answer denies all the allegations of the complaint.

The evidence shows that the plaintiff was the owner of certain lands in Traill county. In February, 1914, he entered into a contract with one Halland for the cropping of these premises during the years 1914, 1915, and 1916. The cropping contract which was in writing, contained provisions to the effect that Halland agreed "not to sell or remove, or suffer to be sold or removed, any of the produce of said farm" without the written consent of Stavens, until a division of such produce had been made; and that, until such division, the title to such produce remained in Stavens. The contract further provided that, upon Halland's compliance with the terms thereof, the produce should be equally divided between Stavens and Halland. In the fall of 1914, Halland hauled and delivered certain grain to the elevator of the defendant. It is undisputed that Stavens received the storage tickets representing his full one-half share of all crops grown on the premises, but he claims that no division was ever made, and that consequently, under the stipulations of the contract, he is the owner of the entire crop and entitled to recover the value of the one-half share thereof which would eventually belong to Halland when a division was made. Halland testified that he hauled his share of the grain in order to pay threshing bills, labor bills, and other bills incurred by him in the production of the crop; that he informed plaintiff, Stavens, of this fact, and that Stavens made no objection...