Towne v. St. Anthony and Dakota Elevator Company
| Decision Date | 11 November 1898 |
| Citation | 77 N.W. 608,8 N.D. 200 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Emma G. Towne against the St. Anthony & Dakota Elevator Company. From a judgment for plaintiff, defendant appeals.
Reversed.
Judgment reversed, and action dismissed.
Cochrane & Corliss, for appellant.
Defendant did not convert the wheat by receiving and storing it with other grain of like kind and grade. By her contract with Murray plaintiff required him to deliver one half of the wheat in the elevator at Erie in her name. She must be regarded as having directed this to be done in the light of the known usages of warehousemen to mingle in a common bin wheat deposited with them for storage. National Exc. Bank v. Wilder, 34 Minn. 149-156. The failure of defendant to issue tickets in the name of plaintiff would not be the assertion of such dominion or control over the wheat as would constitute conversion. Spooner v. Manchester, 133 Mass. 270; Laverthy v. Snethen, 68 N.Y. 522; Metcalf v. McLaughlin, 122 Mass. 84; Strickland v. Barrett, 20 Pick. 415; Sanford v. Elevator Co., 2 N.D. 6. The receipt of property by a bailee from a thief does not of itself constitute a conversion thereof. A demand by the real owner is necessary to put the bailee in default. Brenshouse v. Abbott, 45 N. J. Law 531; Burditt v. Hunt, 25 Me. 419; Gurley v. Armstead, 148 Mass. 267; Valentine v. Duff, 33 N.E. 529; Bates v. Stanton, 1 Duer, 79; Rembaugh v. Phipps, 75 Mo. 422; Loring v. Mulcahey, 3 Allen 575; Nanson v. Jacob, 6 S.W. 246, 249 and cases cited; Smith v Colby, 67 Me. 169; Waring v. R. R., 76 Pa. 491; Leonard v. Tidd, 3 Metc. 6. The bailee may safely return the goods to the thief after notice that a third party claims them, if this is done before a demand by such third person is made. Rembaugh v. Phipps, 75 Mo. 422; Loring v Mulcahey, 3 Allen 575; Gurley v. Armstead, 148 Mass. 267; Nanson v. Jacob, 6 S.W. 246. The defendant having innocently dealt with one in the actual possession of the property cannot be held as for conversion without proof of a demand for the property and a refusal to deliver. Plano Mfg. Co. v. N. P. Elev. Co., 53 N.W 302; Gillett v. Roberts, 57 N.Y. 28; Ely v. Ehle, 3 N.Y. 506; Barrett v. Warren, 3 Hill 348; Abernathy v. Wheeler, 92 Ky. 320; Parker v. Middleton, 24 Conn. 207; Hovey v. Bromley, 33 N.Y.S. 400; Valentine v. Duff, 34 N.E. 453; Salt Springs Nat. Bank v. Wheeler, 48 N.Y. 492; Sanford v. Duluth & Dakota Elev. Co., 2 N.D. 6-13; Biglow Lead. Cas. Torts, 446. There being no conversion at the time of the delivery of the grain, any conversion which took place must have taken place later. As a foundation for judgment for damages, therefore, plaintiff should have proved value at the time of the conversion. Sec. 5000, Rev. Codes. There is no evidence in the case on which the Court can base a finding as to the value of the property at the time of conversion, hence no foundation for judgment for damages. Fargusson v. Talcott, 7 N.D. 183, 73 N.W. 207. Under the statute which plaintiff had in view when ordering Murray to store her grain in an elevator and under the tickets actually issued, the transaction was a bailment and not a deposit for exchange. Plaintiff continued the owner of her proportionate part of the mass of grain of the same kind and grade, no matter how much grain, owned by the elevator company, was taken and shipped out of the state from that mass. § 1792 Rev. Codes; 28 Am. & Eng. Enc. L. 669. A bailee, when property is demanded by a third person, has a right to take reasonable time to investigate the title of such claimant. Note to 24 Am. St. Repts. 806. He may demand some evidence of title of the third person, or may require an agent to show his authority. Taylor v. Spears, 6 Ark. 381, 44 Am. Dec. 519; Note to Bolling v. Kirby, 24 Am. St. Repts. 807. Attaching an instrument to a pleading does not make it a part thereof unless it is an instrument for the payment of money only. § 5268 Rev. Codes; Mayor v. Signoret, 50 Cal. 298; Buck v. Ficher, 2 Colo. 185; Brooks v. Paddock, 6 Colo. 36; Baker v. Berry, 37 Mo. 307; Kern v. Ins. Co., 40 Mo. 25; Peake v. Bell, 65 Mo. 224; Pomeroy v. Fullerton, 133 Mo. 440; Hartford Ins. Co. v. Kahn, 34 P. 895; Jackson v. Ins. Co., 6 P. 731; Watkins v. Brunt, 53 Ind. 208; Burkett v. Griffith, 27 P. 527; Aultman v. Seglenger, 2 S.D. 446; Rust Owen Co. v. Fitch, 3 S.D. 217; Wright v. Sherman, 3 S.D. 290; Excelsior D. Co. v. Brown, 38 Ind. 384; Lytle v. Lytle, 37 Ind. 281; Wyant v. Wyant, 38 Ind. 48; Campbell v. Cross, 39 Ind. 155; Hazzard v. Heacock, 39 Ind. 172; Trueblood v. Hallingsworth, 48 Ind. 537; Cario & Fulton R. Co. v. Parks, 32 Ark. 131; Gebhart v. Garnier, 23 Am. Rep. 722; Harlowe v. Boswell, 15 Ill. 57; State v. Helms, 35 N.E. 894; Larimore v. Wells, 29 Ohio St. 13; Taylor v. Blake, 11 Minn. 255.
Morrill & Engerud, for respondent.
No question can be reviewed on appeal unless it is properly specified as an error. Nichols & Shepard Co. v. Stangler, 7 N.D. 102, 72 N.W. 1089; Globe Inv. Co. v. Boyum, 3 N.D. 538, 58 N.W. 339; O'Brien v. Miller, 4 N.D. 308; Hostetter v. Brooks Elev. Co., 4 N.D. 161; Schmitz v. Heger, 5 N.D. 165. The trial court found as a fact that defendant took the grain and converted it. This finding is not excepted to nor attacked in the specifications of error, hence its correctness is deemed admitted. Ch. 5 Laws 1897, § 5467 Rev. Codes. The question of conversion is specified in the statement of the case as a question to be retried, but this is not a specification of error. Haynes New Trials & Appeals, § § 149, 150. The issuance of storage tickets to Murray, the disposition of part of the grain, and subsequently honoring the tickets issued therefore was a conversion. 26 A. & E. Enc. L. 733; 5 A. E. Enc. L. 528, § 2. Under such circumstances while a demand and refusal would be good evidence of conversion it is not necessary. Myrick v. Bill, 3 Dak. 284, 17 N. W. Rep 268; Nichols v. Barnes, 3 Dak. 148, 14 N.W. 110; Rosum v. Hodges, 1 S.D. 308, 47 N.W. 140; Consolidated Land Co. v. Hawley, 7 S.D. 229, 63 N.W. 904. Defendant is not an innocent bailee. Best Brewing Co. v. Pillsbury, 5 Dak. 62, 37 N.W. 763; 3 Am. & Eng. Enc. L. (2nd Ed.), 762 n. 3. Appellant cannot cannot secure a reversal for an error so trifling as the failure to prove value on the day of conversion, when a proper objection upon this ground at the trial would have enabled plaintiff to make good the proof. Loverin-Browne Co. v. Bank, 7 N.D. 569, 75 N.W. 923. Attaching the contract to the complaint as an exhibit, with proper allegations identifying and referring to it, is a proper method of pleading its contents. Ward v. Clay, 82 Cal. 502; Lambert v. Haskell, 80 Cal. 611; San Diego Co. Bank v. Burns, 104 Cal. 477. In Arkansas where the opposite rule prevails the appellate court will look to exhibits as a part of the pleading to sustain the lower court's rulings. Buckner v. Davis, 29 Ark. 44; Holman v. Patterson, 29 Ark. 357.
This is an action brought to recover damages for the alleged conversion of plaintiff's wheat, and was tried to the Court, under the provisions of chapter 5 of the Session Laws of 1897. The trial court filed its findings of fact and conclusions of law, and a statement of the case was settled, in which are embodied specifications of alleged errors of law, and likewise of particulars wherein appellant claims that the findings of fact are not supported by the evidence. Such specifications are, however, not required, under the act of 1897. Farmers' & M. Nat. Bank v. Davis, 8 N.D. 83, 76 N.W. 998. The rule of this Court requiring specifications was framed at a time when this Court sat only for the correction of errors, and prior to the statute of 1893, which so completely revolutionized the practice in cases tried below without a jury. This rule, it is true, was perpetuated in the amended rules of this Court, but the same is now in force and governs in jury cases only. Id. In this case, as will appear later, appellant has conformed to the requirements of the act of 1897, and specified in the statement certain questions of fact which it desires this Court to reinvestigate or retry.
Almost every fact which enters into the case is controverted but for the purposes of the decision we shall accept the respondent's version of the facts, except upon the decisive question of whether the defendant, when it received the wheat, had notice of the plaintiff's rights in the wheat, or sufficient notice thereof to put it upon its inquiry with respect thereto. For the purpose of the decision, the material facts will be epitomized as follows In 1892 the plaintiff was the owner of a tract of land situated in Cass county, and at that date entered into a written contract with one Adam Murry to sell him the land on what is known as the "crop payment plan." By the terms of the contract, Murry was to have possession of the land, and was required to put it in crop each year until the land was paid for. The contract further stipulated as follows: "One-half of the grain to be sown and grown on said premises in each and every year hereafter, and during the continuance of this contract, beginning with the crop of the year 1893; said one-half of grain to be delivered in the elevator or on the cars at Erie, Cass county, North Dakota, or at some other convenient point not more remote, as said first party shall direct, within a reasonable time after threshing the same, and free of all expense or charge to the first party; said grain to be delivered in the name of the first party (the plaintiff), and to be by the first party promptly sold, and the proceeds thereof applied, first, in payment of interest...
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