Weigel v. Powers v. Company

• Decision Date: 21 May 1923
• Citation: 194 N.W. 113,49 N.D. 867
• Court: North Dakota Supreme Court

194 N.W. 113

49 N.D. 867

EUGENE WEIGEL, Respondent, v. POWERS ELEVATOR COMPANY, Appellant

Supreme Court of North Dakota

May 21, 1923

In District Court, Morton County, Berry, J.

Action to recover the value of grain alleged to have been converted by defendant.

Reversed.

Reversed and remanded with directions. The appellant recovered the cost of this appeal.

J. N McCarter, and E. T. Burke, for appellant.

S. P Halpern and J. K. Murray, for respondent.

JOHNSON J. CHRISTIANSON, BIRDZELL, and NUESSLE, JJ., concur, BRONSON, Ch. J., concurs in result.

OPINION

JOHNSON, J.

This is a conversion action. The plaintiff is engaged in the banking and the real estate business at Hebron; the defendant operates a public warehouse and elevator at Killdeer. The plaintiff seeks to recover damages from the defendant for the alleged conversion of a quantity of grain grown by one Frederick Spier, in 1920, upon certain lands situated in Dunn county. The grain, which the defendant is charged with converting, was delivered to it by Spier, at its elevator at Killdeer, North Dakota, sometime during the fall of 1920, and was the 1920 crop. It is conceded that the land on which the grain was raised had been sold by Eugene Herzog to Spier in 1918, under a contract for a deed, on the crop payment plan. The evidence also shows that in 1920 Herzog and Mr. and Mrs. Fred Spier executed a new contract covering the same premises as the old contract did, and in substantially the same terms. This contract, however, they dated back to 1918. The evidence further tends to show that the original contract was destroyed, and the new contract took its place. The contract was, on the 2nd day of September, 1920, assigned by Herzog to plaintiff and respondent, Weigel.

The contract contains the following stipulation with reference to the payment of the purchase price:

"Said party of the second part further agrees to pay the said party of the first part as and for the purchase price of said described premises the said sum of five thousand and two hundred dollars as down payment in form of equity in land and rest dollars according to the conditions of ten promissory notes for thirteen thousand no/100 dollars ($ 13,000), each due October 18, to 1928, and interest thereon at the rate of 6 per cent per annum, in gold or its equivalent, in manner following, to wit: 8 per cent after maturity. That he will deliver to said party of the first part or agent, one half of all crops raised each year at Killdeer or such other place as may hereafter be mutually agreed upon, such delivery to be made and the price of grain so delivered to be fixed on or before the first day of December of each year. The price so fixed to be the market price at the time of delivery of said grain; the amount so realized to be credited on this contract, first by paying the interest due at the time of said delivery, and the remainder to be applied to the reduction of the principal sum then remaining unpaid, until the full amount of the principal and interest is wholly paid."

The contract further stipulates that the title to all of the crop should be in the vendor until division, and delivery of one half thereof, to the vendee. This part of the contract is in the following language:

"It is further agreed and understood that no assignment of the premises or any part thereof, or of said contract, or any pledge thereof, shall be valid unless the consent of the said party of the first part shall be indorsed thereon or permanently attached thereto, and it is further hereby especially agreed by and between the parties hereto, that the title of all grains and crops grown and raised upon the above-described land during the entire life of this contract shall be and remain in the party of the first part, it be the express understanding that the first party reserves title to seed crops and that such title shall remain intact in the party of the first part until after the proper division of said crops has been made."

There was a further stipulation in the contract that a chattel mortgage should be executed by the vendee to the vendor on all crops grown to secure the payment of the purchase price during the life of the contract. No chattel mortgage was ever executed or filed and the contract, itself, was not filed as a chattel mortgage nor was it filed for record in the office of the register of deeds of Dunn county. There is no claim of fraud against appellant, or that appellant purchased this grain with actual knowledge of plaintiff's alleged lien. It also appears that there was an unsatisfied seed lien against this grain which, under the statutes of this state, would be superior to that of a mortgage.

The jury returned a verdict for the plaintiff in the sum of $ 775.51, upon which judgment was entered.

At the conclusion of the plaintiff's case, the defendant moved for a directed verdict, which was resisted by the plaintiff, and this motion was renewed after both sides rested; both motions were denied. After the verdict was returned, the defendant and appellant moved for judgment notwithstanding the verdict upon the grounds set forth in the motion for a directed verdict. Inasmuch as there was not such a total failure on the part of the plaintiff to prove a cause of action as could not be remedied on a new trial, this motion was properly denied.

Thereafter the defendant and appellant moved for a new trial. This motion was denied. This case was tried upon the theory that the vendor in a contract for the sale of land on the crop payment plan, where the contract in terms reserved title to all of the grain raised on the premises until division of the crop each year, has a lien on such crop in the nature of a chattel mortgage and that a demand and refusal are necessary to constitute conversion. On the abstract question whether the vendor under such a contract has a lien on the crop or is the absolute owner thereof we express no opinion. We simply decide this case on the theory on which it was tried and assume that a demand and refusal are essential to plaintiff's right to recover in conversion in this action. Plaintiff below assumed that he had a lien on the crop. For the purpose of this decision we assume, without deciding, that this assumption was correct.

Appellant specifies thirty-three errors, most of which relate to rulings of the trial court upon objections to certain evidence. This appeal, therefore, brings up for review numerous errors or law alleged to have occurred at the trial.

We believe that the decision of this court upon specifications 25, 26, 27, 28 and 29, is decisive of this case. The errors complained of in these specifications refer to the testimony of the witness, O. H. Larson, who was called by the plaintiff and respondent to establish the market price, or market value, of durum at Killdeer, on several dates, on one of which dates the conversion is alleged to have taken place.

Before considering these specifications, it will be necessary to a thorough understanding of the issues, to state the facts more fully. The plaintiff and respondent proved the execution of the contract hereinbefore referred to, the growing of the grain in issue by the vendee thereunder, and the delivery of a total of 1,000 bushels of wheat and durum and some 65 or 75 bushels of flax to the elevator of the respondent at Killdeer, sometime during the fall of 1920. The exact date of delivery does not appear, neither is there any evidence in the record tending to show the grade or quality of the wheat and the flax delivered, except that of the witness Spier, the vendee under the land contract, who testified that all his wheat and durum was No. 1. The trial court having assumed that the grain in this case was taken subject to a lien, a conversion thereof does not take place until some affirmative act on the part of the appellant, like tortious detention thereof from the owner of the party entitled to the possession thereof, or an exclusion or defiance of such party's right, or the withholding of possession under a claim of title inconsistent with that of the plaintiff, or owner. As no such act was proved until the demand and refusal, there was no proof of conversion in this case, prior to the 16th of January, 1921. Citizens Nat. Bank v. Osborne-McMillan Elevator Co. 21 N.D. 335, 131 N.W. 266; Bentler v. Brynjolfson, 38 N.D. 401, 165 N.W. 553; Merchants' State Bank v. Sawyer Farmers' Co-op. Asso. 47 N.D. 375, 14 A.L.R. 1353, 182 N.W. 263; Catlett v. Stokes, 21 S.D. 108, 110 N.W. 84; Skjerseth v. Woodworth Elevator Co. 35 N.D. 295, 160 N.W. 70; Towne v. St. Anthony & D. Elevator Co. 8 N.D. 200, 77 N.W. 608. The plaintiff and respondent, therefore, offered in evidence several letters and copies of letters, all of which were offered for the purpose of proving demand and refusal. The first letter, dated December 22, 1920, written by the plaintiff and respondent, plaintiff's exhibit 13, was directed to the appellant, at its office, at Killdeer. In this letter the respondent asks the appellant to tell him how much grain Mr. Spier has hauled to the elevator and then says: "For your information I wish to let you know that 650 bushels of grain out of his wheat crop according to his contract will have to be applied on the contract. So far he has only sent me storage tickets for about 200 bushels. Half of his flax crop will also have to be applied on the contract.

"Shall be greatly obliged for an early reply, and oblige," Then as a postscript this appears: "Spier has the right to sell the grain at any time he sees fit only the money will have to be sent to me."

Manifestly this is not a demand for the grain, or for the storage tickets.

Plaintiff next introduces exhibit 14, the reply of the appellant to exhibit 13,...