157 N.W. 122 | N.D. | 1916
This is an action to recover damages for the .alleged conversion of certain grain covered by a chattel mortgage, ■executed and delivered to the plaintiffs by one Harper, the owner of the grain, and which grain was delivered and sold by said Harper in January, 1913, to the defendant at its elevator at Sykeston, in this state. The jury returned a verdict in favor of the plaintiffs for $1,021.96. Judgment was entered pursuant to the verdict, and defendant has •appealed from the judgment.
(a) “It is incumbent upon the plaintiffs to show you that they have in this case a valid and special lien upon the property in question; that
(b) “If you find that the grain in question was the grain described in plaintiff’s mortgage, and that it was delivered to the defendant elevator company, and that the plaintiff has made a demand upon the elevator company for the grain or the value thereof, prior to the commencement of this action, then your verdict should be in favor of the plaintiff for the value of the grain, as established by the evidence and as has been proven as the value thereof and the amount of the grain.”
(c) “The fact that the plaintiffs have a chattel mortgage upon certain grain is constructive notice to all parties of the fact of the mortgage and of the lien.”
Appellant’s counsel contends that the chattel mortgage was not a valid lien upon the grain in question, unless defendant had either actual or constructive notice thereof. It is asserted that the instructions in question omit this essential element, and hence are erroneous. The testimony relative to the execution, delivery, and recording of the mortgage was undisputed. Hence, defendant could hardly be prejudiced by the instructions under consideration. We find, however, that the court also instructed the jury as follows: “There could be no conversion until the plaintiffs have shown that they had a mortgage which is filed for record, and that it covers the property in question, and that the same was delivered to the defendant company, and that plaintiff has made a demand for the particular property or for the value thereof.” This-court has repeatedly held that the instructions must be considered as a whole. When the instructions in this case are so considered, defendant has no cause for complaint.
Q. Are you telling us what you know about this matter here ?
A. Yes, sir.
Q. Don’t you remember this, any of these transactions at all ?
A. Remember the flax was sold there, sold after December 6th I do not know, Harper sold same.
Q. Not asking about what was sold; when was it hauled?
Q. Well, how much was hauled ?
A. It was about 400 bushels in the bin.
Q. Do you know if that flax was hauled to the Occident elevator or not?
A. No, not up to the Occident elevator, no.
Defendant’s counsel contends that plaintiffs’ counsel knew that Evans had been subpoenaed as a witness for defendant, and that Evans was called as a witness by plaintiffs for the sole purpose of discrediting him with the jury before defendant had an opportunity to call him as a witness. Defendant particularly complains of the questions propounded by the court. At the time the court propounded these questions, Evans was testifying as a witness for the plaintiffs. There is nothing to indicate that the court had any knowledge of the fact that Evans had been subpoenaed as a witness for the defendant. Nor is there anything to indicate that the trial court’s examination was conducted in an improper manner. The presumption is that the court’s action was occasioned by a sense of duty, that it was actuated by proper motives, and properly conducted. The testimony of Evans (as defendant’s counsel concedes) was not at all satisfactory, and the questions propounded by the trial court were apparently asked for the purpose of ascertaining, if possible, the truth with reference to the matter to which Evans had testified. The court’s action in propounding these questions to Evans does not constitute prejudicial error. See 21 Enc. PI. & Pr. 990.
The judgment must be affirmed. It is so ordered.