Willard v. Monarch Elevator Company
| Decision Date | 25 October 1901 |
| Citation | 87 N.W. 996,10 N.D. 400 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Addie P. Willard against the Monarch Elevator Company. Verdict for plaintiff. From an order denying a new trial defendant appeals. Affirmed.
Affirmed.
P. H Rourke, for appellant.
Plaintiff by the stipulations in her contract for lease, agreed that Jepson should pay her half of the crops raised, to be delivered at the time of threshing, free of expense, in the elevator at Buffalo, she to hold 500 bushels of his half of the wheat until the plowing was done, the tickets for the 500 bushels to be deposited with R. P. Sherman. The contract was a pledge, or agreement for a pledge of wheat. § § 4745, 4751, 4746, Rev. Codes; Story on Bailment, § 286; Luckett v. Townsend, 49 Am. Dec. 730. It is the essence of such contract that delivery of custody of the pledged property be made to the pledgee, he to continuously retain the possession. Bank v. Nelson, 38 Ga. 391; Casey v. Cavaroc, 96 U.S. 467; Luckett v. Townsend, 49 Am. Dec. 730. The contract being an agreement for a pledge was inadmissible in evidence under a complaint declaring on a chattel mortgage. By treating the contract as one of chattel mortgage, plaintiff thereby agreed to the delivery of the wheat into the elevator of appellant, consenting that the tickets be delivered to Sherman. Appellant, having dealt with the wheat with respondent's consent, cannot be held for conversion except on proof of demand for the property and a refusal to deliver. Plano Mfg. Co. v. Elevator Co., 53 N.W. 202 Stanford v. Elevator Co., 2 N.D. 2; Towne v. Elevator Co., 8 N.D. 200; Valentine v. Duff, 34 N.E. 553. There was no proof of value at the time of the alleged conversion, or afterwards, proof of value being as of a date two months prior to the alleged demand. Towne v. Elevator Co., 8 N.D. 200; § 5000 Rev. Codes. Under the contract the wheat tickets were to remain in the hands of Sherman to await performance of the conditions of the lease. Plaintiff, to recover in conversion, must be in possession or entitled to possession of the property at the time of the conversion. Under this contract she was not in possession or entitled to possession. Clendening v. Hawk, 8 N.D. 419; Parker v. Bank, 3 N.D. 87.
Newman, Spalding & Stambaugh, (Duerment & Moore of counsel), for respondent.
Appellant's contention fails to give effect to the clearly expressed intention of the parties that respondent was to hold this wheat and have a lien thereon. This clause creates a lien without any other or further act on the part of the tenant. § § 4673, 4680, 4681, 4701, 4713, 4745, Comp. Laws; Bidgood v. Monarch Elevator Co., 9 N.D. 627. The contract was not one of pledge for the reason that all the essentials of a pledge were lacking. The clause in question clearly amounted to a chattel mortgage. Harris v. Jones, 83 N.C. 317; Mitchell v. Badgett, 33 Ark. 307; Whitney v. Eichelberger, 16 Ia. 422. Counsel, by stipulating that the value of the wheat at the time it was delivered was fifty-six cents, conceded that damages were to be fixed as of that day. Having led the court to act upon this stipulation he cannot now insist that a different theory be adopted. Parish v. Mahaney, 81 N.W. 295, 12 S.D. 278.
A state of affairs once shown to exist is presumed to continue. If the value of wheat was lower appellant was entitled to avail itself of that fact and could have shown it. Howland v. Davis, 40 Mich. 545. Both parties having moved for a directed verdict at the conclusion of plaintiff's testimony, each consented that the court determine the case without a jury. New England Mfg. Co. v. Elevator Co., 6 N.D. 407, 71 N.W. 130; Stanford v. McGill, 6 N.D. 536, 72 N.W. 738; First Methodist Church v. Fadden, 8 N.D. 162, 71 N.W. 615; Rosenbaum v. Hayes, 8 N.D. 461, 79 N.W. 987; Buettell v. Magone, 157 U.S. 154, 15 S.Ct. 566.
This is an action for the conversion of wheat, on which it is alleged that the plaintiff had a chattel mortgage. One Jepson leased a half section of land from the plaintiff for farming purposes in the year 1896. The lease was in writing, and was duly filed in the office of the register of deeds for Cass county, and contains the following special provision, which is claimed to be a chattel mortgage, to-wit: The lease contained other stipulations providing that, in case of default in the conditions of the lease as to matters not contained in the provision quoted above, the plaintiff might take possession of all of the crops, and sell them, and apply the proceeds towards the performance of the stipulations of said lease not performed by said Jepson; the residue of such proceeds to be paid over to said Jepson. The lease also contained a provision that the title and possession of the wheat and all crops grown thereon should be and remain in the lessor until a division thereof was made. The complaint states a cause of action for the wrongful conversion of the 500 bushels of wheat alleged to have been covered by said mortgage after actual notice of the existence of such mortgage on said 500 bushels and after demand that the wheat or proceeds be turned over to the plaintiff. The complaint also alleges that the said Jepson failed and refused to plow the land as agreed to by him in said lease, whereby the condition in said contract as to the security for the plowing of the land became operative and of force; that, in consequence of such failure on said Jepson's part to plow said land, she was compelled to cause the same to be done, and did cause the same to be done, to her damage in the sum of $ 280 and interest. The answer was a general denial of the allegations of the complaint. At the close of the taking of testimony on the part of the plaintiff, and after denying a motion made by the defendant for a directed verdict in his favor, the trial court directed a verdict in favor of the plaintiff. A motion for a new trial was duly made by the defendant, based upon a settled statement of the case, and denied. The defendant appeals from such order refusing to grant a new trial.
There was no evidence offered at the trial on the part of the defendant. It is first contended by the appellant that the provision of the lease, hereinbefore set out in detail constituted it a pledge or an agreement for a pledge and not a chattel mortgage. "Every contract by which the possession of personal property is transferred as security only, is to be deemed a pledge." Section 4745, Rev. Codes. "The lien of a pledge is dependent on possession and no pledge is valid until the property pledged is delivered to the pledgee or to a pledge holder as hereinafter described." § 4746, Rev. Codes. By the terms of these sections, which are declaratory of the common law on the subject of pledges, no valid pledge can be made unless there be a transfer of the possession of the property pledged at the time. A change of possession of the article pledged is of the very essence of such a transaction, and a prerequisite to the valid creation of the relation of pledgor and pledgee. In this case this essential--the transfer of possession--was wanting, and impossible to be complied with, at the date of the contract or lease. The subject of the special provision--the wheat--was not in existence, and a delivery of possession thereof was not possible. Hence, although the language of this special provision could be construed as creating a pledge or a mortgage, it is nevertheless the duty of the courts to give effect to the intentions of the parties in their negotiations, and such negotiations should not be construed to be meaningless, or of no effect, when their language is reasonably susceptible of a construction that gives effect and force to all the provisions thereof. Under the terms of the special provision every essential to the making of a valid chattel mortgage of the wheat is to be found in the provision. A lien is expressly created by this contract as security for the performance of the conditions of the contract and it provides how these conditions shall be performed in case of default by the lessee. Looking at the provisions of the instrument, and construing them together, it is clear to us that the relation of mortgagor and mortgagee was created by its terms. Harris v. Jones, 83 N.C. 317; Mitchell v. Badgett, 33 Ark. 387; Whiting v. Eichelberger, 16 Iowa 422. The special provision is not an agreement for a pledge, for the reason that Jepson was not obligated to do anything concerning these 500 bushels after the threshing under the terms of this contract was done. His duty as to this ended when the threshing was done. The plaintiff was to hold these 500 bushels, and to have a lien thereon. It was not his duty, even, to put this wheat into the elevator. It is true that, if tickets had been procured for this wheat, and placed in the hands of Sherman, a pledge of the tickets would have been created. But this was never done, and not...
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