Stebbins v. Martin
| Decision Date | 11 April 1913 |
| Docket Number | Nos. 18,072-(194, 195).,s. 18,072-(194, 195). |
| Citation | 121 Minn. 154 |
| Parties | ELIZABETH B. STEBBINS v. J. E. MARTIN and Another.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $2,300, and interest, for conversion of a certain certificate of stock for 230 shares. The separate answers of defendants were general denials. The case was tried before Jelley, J., who directed a verdict in favor of plaintiff for the amount demanded. Defendants' joint motion for a judgment in favor of defendants, notwithstanding the verdict, or for a judgment in favor of plaintiff and against defendants for the sum of one dollar and costs was denied, and of its own motion the court vacated the verdict and ordered a new trial. From the order setting aside the verdict and ordering a new trial, plaintiff appealed. From the order denying defendants' alternative motion and granting a new trial, defendants appealed. From the order granting a new trial, plaintiff appealed. Affirmed.
Jay W. Crane, for plaintiff.
Jesse Van Valkenburg and George S. Grimes, for defendants.
On March 30, 1910, A. T. Stebbins and defendant Martin entered into a contract whereby Stebbins agreed to break 3,000 acres of land in the province of Saskatchewan during the season of 1910, at least 1,000 acres to be broken before June 1. Martin agreed to pay $3.50 an acre for all breaking done before June 1, and $3 an acre for all breaking done thereafter. On April 15 Martin advanced to Stebbins $525 to pay the expenses of outfitting. To secure the same Stebbins hypothecated the stock which is the subject of this action, and which belonged to his mother, the plaintiff. Martin gave a receipt for the stock in language as follows:
Stebbins broke only 10 acres of land. On February 4, 1911, Martin assigned his interest in said contract, together with all damages accruing on account of the breach thereof, to the defendant McDonald.
McDonald thereupon brought an action against A. T. Stebbins for damages for the breach of said contract. The complaint alleged two elements of damage: First, that the cost and reasonable value of breaking said 3,000 acres during the season of 1910 was $4.50 an acre, and that said Martin was damaged to the extent of the difference between this amount and the contract price; second, that if Stebbins had performed his contract, Martin could have raised a crop of the value of $4,000 over and above all expenses of raising and marketing the same; that the rental value of said 1,000 acres, broken before June 1, was the sum of $4,000; that unbroken it had no rental value. Stebbins in answer to said complaint admitted the contract, alleged a release thereof, and denied that Martin had suffered any damage. This action was tried, and the jury disagreed. In January, 1912, the parties settled the action in consideration of Stebbins paying the sum of one dollar and other valuable considerations, which aggregated in the neighborhood of $100. On said stipulation, judgment was entered January 5, 1912, dismissing said action on the merits.
It appears that on the trial of that action the defendant Martin had, in speaking of the stock, stated that he had "turned it over to McDonald." On January 8, 1912, the plaintiff in this action through her attorney, demanded a return of this certificate of stock. The demand was refused, and plaintiff brought this action for conversion of the stock. On the trial of this action neither defendant appeared. Plaintiff procured a subpœna requiring their attendance, but neither of them could be found, although the defendant McDonald had been in the city of Minneapolis, where the case was tried, the evening before. Prior to the trial, plaintiff served on defendants' attorneys notice to produce said certificate of stock. The certificate was not produced, although it was admitted that defendant McDonald had turned over either the original certificate or a substituted certificate to one of his attorneys.
At the conclusion of plaintiff's testimony both parties rested. Both parties moved for a directed verdict. The court granted plaintiff's motion, and directed a verdict in her favor for the par value of the stock. Thereafter defendants moved for judgment notwithstanding the verdict. The court denied this motion, but on its own motion granted a new trial on the following grounds: First, that said verdict is not justified by the evidence; and, second, that said verdict is contrary to law. Both parties appeal.
1. The order granting a new trial should be affirmed. The order for a directed verdict in favor of plaintiff was wrong. The evidence does not sustain such a verdict. This is an action for conversion of this stock. Conversion may be established by proof of actual misappropriation, as by sale or consumption of the property, or, in a case where the plaintiff is entitled to the possession of the property, it may be established by mere proof of a demand of possession made by the plaintiff, and a refusal of defendant to deliver. There is no evidence of actual misappropriation of the stock. Misappropriation cannot be inferred from the mere fact that Martin "turned it over" to McDonald, without further proof of the manner of its turning over. The proof must show that there was a repudiation of plaintiff's rights as pledgeor. If Martin made an absolute sale of the stock to McDonald, both were liable in conversion (Jesurun v. Kent, 45 Minn. 222, 47 N. W. 784; Upham v. Barbour, 65 Minn. 364, 68 N. W. 42); but it does not appear that Martin did so. For aught that appears, he may have assigned the claim for $525 to McDonald, and turned the stock over as the collateral security accompanying the debt. This would not constitute conversion of the stock.
2. The only evidence of conversion claimed is that of demand of possession made by plainti...
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