Warnken & Company v. Langdon Mercantile Company
| Decision Date | 28 December 1898 |
| Citation | 77 N.W. 1000,8 N.D. 243 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cavalier County; Sauter, J.
Action by T. J. Warnken and Bertha Warnken, co-partners as Warnken & Co., against Charles Chrisholm and Charles Hunter co-partners as the Langdon Mercantile Company. Verdict for defendants. From an order refusing a new trial, plaintiffs appeal.
Reversed.
Order reversed, judgment vacated, and new trial ordered.
J. C Monnet, for appellants.
W. J Kneeshaw, for respondents.
Plaintiff, as alleged owner, seeks to recover from defendants in conversion the value of certain personal property, which it is conceded was taken and sold by it under a certain chattel mortgage, but, as it claims, lawfully. At the close of plaintiffs' case, upon defendant's motion, a verdict was directed in its favor. Motion for a new trial was made, and overruled. Plaintiff appeals. The evidence shows that on December 15, 1894, the plaintiff, which does business at Morden, in the province of Manitoba, made a conditional sale of certain personal property, the value of which is involved in this action, to one Andrew Albers, then a resident of Manitoba, the purchaser giving the plaintiff his four notes therefor, each of which contained this recital: "The title, ownership, and right of possession of the property for which this note is given shall remain in B. Warnken & Co. until this note, or any renewal thereof, is fully paid, with interest." Shortly afterwards Albers, without the knowledge or consent of plaintiff, brought this property into this state, and on March 16, 1895, mortgaged it to the Citizens' State Bank of Langdon, to secure a joint note given by himself and one Zado to the bank for a loan. Without commenting upon the weight of certain evidence which plaintiff contends shows that this note was in fact paid, for the purposes of this opinion it is sufficient to state that, by a series of transfers, it came into the hands of the defendant, who, in December, 1895, took the property, under the mortgage securing it, and sold it at foreclosure sale. It developed during the trial that the plaintiff had sent the Manitoba title notes to the Citizens' Bank of Langdon for collection, and that the cashier thereof had, on July 24, 1895, taken two new notes, due in one and two years, as collateral to the title notes, and secured such new notes by taking a chattel mortgage upon this same property. The extent of the authority given to the bank by plaintiff is not clear. Neither does it clearly appear that the plaintiff was aware that this mortgage had been taken, until it was developed at the trial. It was shown that the cashier refused to surrender the title notes to the maker. When plaintiff rested its case, defendant moved for a directed verdict, upon the ground that plaintiff had failed to show ownership of the property, and that the chattel mortgage subsequently taken amounted to a waiver of the reservation of title in the original Manitoba notes, and rendered the sale absolute to Albers. Verdict was directed as requested. This is specified as error, and we think it was. It is not disputed that the legal effect of the original conditional sale notes executed in Manitoba was to effectually reserve the title and ownership of the property in the plaintiff, as well as to give it the right to reclaim possession, even as against an...
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