Wood v. Steinau

• Decision Date: 18 July 1896
• Citation: 9 S.D. 110,68 N.W. 160
• Parties: WOOD, Plaintiff and respondent, v. STEINAU, Defendant and appellant.
• Court: South Dakota Supreme Court

9 S.D. 110

68 N.W. 160

WOOD, Plaintiff and respondent,

v.

STEINAU, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Union County, SD Hon. E. G. Smith, Judge Reversed A. D. Kellar, R. B. Tripp, Yankton, SD Attorneys for appellant. E. C. Ericson, French & Orvis, Yankton, SD Attorneys for respondent. Opinion filed July 18, 1896

FULLER, J.

Upon a claim of joint ownership and right of possession, plaintiff instituted this action to recover the value of a certain stock of general merchandise alleged to have been wrongfully converted by the defendant to his own use. A jury trial resulted in a verdict against the defendant in plaintiff’s favor for $1,132.99, and this appeal is by the defendant from a judgment accordingly entered, and from an order overruling a motion for a new trial. The cause of action stated by respondent in her complaint being fully established by the evidence introduced at the trial, facts not essential to an understanding and consideration of assignments of error challenging the correctness of the court’s charge to the jury, and relating to certain rulings upon the admission and rejection of evidence, will be omitted. Pending proceeding to foreclose a mortgage upon certain land owned by respondent, the parties to this action entered into a contract, the validity of which is not questioned, pursuant to which appellant purchased the premises at foreclosure sale for $1,278.07, and upon the expiration of the period of redemption received a sheriff’s deed therefor. According to the arrangement above mentioned, respondent, who agreed not to redeem from the foreclosure sale, was to have one year after the execution of a sheriff’s deed within which to obtain from appellant a conveyance of the premises, upon payment of the amount bid and paid therefor, together with 10 per cent annual interest thereon. Afterwards, and before the year had expired, and apparently pursuant to a further agreement between the parties to this suit, the land in question was given, together with $400 of appellant’s money, in exchange for the stock of merchandise in question, the value of which was estimated to be $3,200, in the city of Minneapolis, where, by the assistance of respondent’s husband, acting, it is claimed, for both his wife and appellant, the bargain was negotiated and concluded. For the purposes of the trade the land was considered to be worth and taken at $2,800, which, with the cash payment of $400 made by appellant, constituted the entire consideration for the merchandise, upon the receipt of which, with a bill of sale made by the owner, appellant paid the money, and executed and delivered his warranty deed. As shown by the undisputed testimony, it was agreed that the property thus obtained was to be shipped to Akron, Iowa, in the name of appellant, to be placed in a store, for the purpose of retail trade, with other goods, wares, and merchandise, known as the “Bishop stock,” which was to be turned over to appellant, in the name of whom the business was to be carried on by respondent and her husband until appellant should receive from the proceeds of retail trade all the money due him from respondent, which at least includes the item of $400 and the amount paid for respondent’s land at foreclosure sale, with interest at the rate agreed upon. Concerning the value of the stock of merchandise obtained at Minneapolis, and the aggregate amount of money which appellant was, under the agreement, entitled to receive from the sales at Akron, there is some conflict in the evidence, all of which was not, it is claimed, submitted to the jury under specific and proper instructions by the court. After the shipment to and arrival of the property at Akron, some misunderstanding arose between the parties with reference to the delivery to appellant’ of the Bishop stock, which was then in a building occupied apparently by the mother of respondent, in whose name the business was at the time being transacted. The evidence received under the complaint, though disputed in some particulars, is sufficient, if properly admitted, to establish a joint ownership of the property in controversy, and show a willingness and ability on the part of respondent to comply with her agreement by turning over to appellant the Bishop stock to be mingled with the goods owned jointly by appellant and respondent, with the understanding that the business be conducted by respondent and her husband, but in the name of appellant, until he had been fully reimbursed for the...