Taylor v. Jones

• Decision Date: 14 April 1893
• Court: North Dakota Supreme Court

55 N.W. 593

3 N.D. 235

THEOPHILUS L. TAYLOR v. JOHN R. JONES

Supreme Court of North Dakota

April 14, 1893

Appeal from District Court, Richland County, Lauder, J.

Action by Theophilus L. Taylor against John R. Jones, for conversion. Judgment for plaintiff. Defendant appeals.

Affirmed.

McCumber & Bogart, for appellant.

The verdict was against the clear weight of the testimony and should be set aside. Mead v. Courve, 8 At. Rep. 374; Hicks v. Stone, 13 Minn. 434; Garrett v Greenwell, 4 S.W. 441; Sandwich Manufacturing Co. v Feary, 33 N.W. 485; Kaemmever v. Hauser, 29 Ill.App. 576; Jones v. McWalley, 11 S.E. 544; M P. Ry. Co. v. Summers, 14 S.W. 779; Helfrich v Hogden City Ry. Co., 26 P. 295; Atchison & C. Ry. Co. v. Wagner, 7 P. 204; Cummings v. Winters, 28 N.W. 303. The silence of Taylor was an assent to the proposition made by Jones. Bishop Cont. § § 284-290 and 229; 1 Parsons Cont. 476; Abbot v. Herman, 7 Me. 118; Preston v. Am. Linen Co., 119 Mass. 400; Leathers Mfg's Nat. Bank v. Morgen, 6 S.Ct. 657; Steel v. Refining Co., 1 S.Ct. 389.

W. E. Purcell and L. B. Everdell for respondent.

A court will not set aside a verdict as being against evidence, because on examination they might have come to a different conclusion from that arrived at by the jury. Wendall v. Stafford, 12 N.H. 171, Mays v. Callwin, 6 Leigh 230. A mere preponderance of evidence against a verdict is no ground for granting a new trial. 1 Graham & Watt on New Trials, 380; Johnson v. R. R. Co., 11 Minn. 204; De Rochebrune v. Southeimer, 12 Minn. 78; State v. Herrick, 12 Minn. 132; Canefield v. Bogie, 2 Dakota 465; Moline Plow Co. v. Gilbert (Dak.) 16 N.W. 500; King v. Meyers, 35 Cal. 646; Todd v. Brannan, 30 Iowa 439; Barret v. U. S. 9 Wall, 38; Alveron v. U. S. 8 Wall. 337.

OPINION

BARTHOLOMEW, C. J.

Taylor, the plaintiff below and respondent herein, sued John R. Jones, the defendant and appellant, in conversion for the value of a team, harness, and buggy. There was a verdict for plaintiff, a motion for a new trial denied, and judgment on the verdict. It is uncontroverted that respondent was the owner of the property prior to bringing this action, and that it was in appellant's possession; that respondent demanded the same, and appellant refused to deliver it. The answer alleged, in substance, that on the 2nd day of June, 1891, respondent delivered the property to appellant, as a pledge to secure an indebtedness that respondent owed to appellant, and that appellant held the property under and in accordance with the terms of the pledge, and that the debt had not been paid. That the debt existed and was unpaid seems to be conceded. The case was made to turn entirely upon the truth or falsity of the allegation that the property was pledged. Appellant presents the case in this court under three heads, which cover all his assignments of error: First, insufficiency of the evidence to justify the verdict, and herein error of the court in refusing to direct a verdict for appellant, and in refusing a new trial; second, error in refusing and giving instructions; third, error in admitting and excluding evidence.

From a mass of testimony we summarize the following facts as sufficient to render our rulings intelligible: Prior to June 2nd, 1891, one Holding recovered a judgment against the respondent, Taylor, and caused execution to issue thereon under which the sheriff of the proper county seized the horses and harness in question. Taylor claimed this property of the sheriff as exempt from sale on execution, but the sheriff refused to recognize this claim, and had advertised the property for sale on said June 2nd, 1891. Taylor desired to preserve this particular property, and also to preserve his right of action against the sheriff for selling exempt property. This he could properly do. See Northrup v. Cross, 2 N.D. 433, 51 N.W. 718. The day before the sale the respondent saw one David Jones, the brother and agent of appellant, and one Malloy, appellant's bookkeeper. Appellant was absent. Respondent desired David Jones and Mr. Malloy to go with him the next day to Forman, where the sale was to take place. The witnesses differ as to respondent's object in having David Jones and Malloy present at the sale. Respondent testifies that he desired them to help him to raise money in case the property should be bid up at the sale to a figure in excess of what money he had. David Jones and Malloy testify that he wanted them to attach the property on his debt to appellant, in order to head off certain other creditors. Appellant was notified by telegram to be present at Forman, but it was feared he could not get there before the sale. Early on the morning of June 2nd, David Jones and Mr. Malloy went with respondent to Forman. They immediately saw Mr. Ellsworth, an attorney, and, after consultation, an attachment action was commenced by said attorney in the name of appellant against respondent, and a writ of attachment procured and delivered to the sheriff, who immediately levied it upon the property. This was known to respondent before the hour fixed for the sale. At the sale the property was bought by David Jones, in his own name, but with money furnished entirely by respondent. Soon after the sale, appellant reached Forman. It is proper here to state that respondent's debt to appellant was for lumber purchased, and appellant had it secured by mechanic's lien. When appellant and respondent met at Forman, appellant began to upbraid respondent for getting his (appellant's) men to bring the attachment action and thus invalidate the mechanic's lien, and declared that he would hold the property until he was secured. Appellant then testifies, in detail, that respondent not wishing to have further expense, asked him to release the attachment, saying that he would turn the property over as a pledge until he got other sufficient security. To this appellant agreed, and the attachment was released, and the horses and harness, and, under the advice of Mr. Ellsworth, the buggy also, were turned over to David Jones, as pledge holder for appellant. A careful scrutiny of the testimony fails to disclose that any other witness says anything about a pledge. All of the other witnesses seem to have understood that the team and harness were held by virtue of the purchase of David Jones at the sheriff's sale. David Jones testifies: "I bid the team in for the interest of John R. Jones. I bid it in myself, in my own name." "I bid the team in for John R. Jones. I held the team by that bid. I hold the team." "I said, at the time I purchased this property, I purchased in the interests of John R. Jones." "It was to be given back by myself or John R. Jones, to him, [Taylor;] no difference which." "I held them as John R. Jones' property until the thing was settled,--until a bill of sale was made to Mrs. Taylor." Speaking of the agreement with respondent, he says: "The horses should be in my charge, or in my brother John's, himself, until he settled the account." The witness Malloy narrates the circumstances attending the sale; that respondent gave him the money to purchase the property, and he turned it over to David Jones; that, by the subsequent agreement, the property was to remain in David Jones' possession until the account was secured, and then a bill of sale was to be made to Mrs. Taylor. Mr. Ellsworth, the attorney, was also a witness for the appellant. In speaking of what took place after the sale, and at the time when it is claimed the pledge was made, he says: "He [Taylor] said he wanted it understood that the sale, or the purchase of this property at the sale, was a bona fide purchase, and that he would arrange it with Mr. Jones in a short time." He further said that, when the account was secured, a bill of sale of the property was to be made to respondent's wife, Mrs. Taylor; that respondent wanted it done in that manner, so that no other party could seize the property; that, as the buggy had not been sold, he (witness) suggested to Mr. Jones, in Taylor's presence, that it would be better if Taylor would turn over the buggy also, to which Taylor agreed; that he then sent for the sheriff, and gave him a written order releasing the attachment. Respondent, in his testimony, claims that he furnished the money to Malloy to buy the property in for him; that instead of doing so, Malloy turned the money over to David Jones, who bought the property in his own name. He unequivocally denies that the property was ever turned over as a pledge or otherwise; claims that it was taken by appellant or his agents after the sale, without his (respondent's) knowledge or consent; and denies all knowledge that the attachment was released. He admits that appellant told him that the attachment had invalidated his lien, and that he would hold the team, but says that he made no reply; admits also, that Mr. Ellsworth advised him to turn over the buggy, but says he made no reply. ...