145 N.W. 554 | S.D. | 1914
The -com-plaint in substance 'states that on the 15th day of August, 1892, one Cassidy executed and delivered to ■plaintiff his .promissory note for $6,000, due January 1, 1893; that on the 29th ■da)'- of July, 1893, to secure the payment of said note, Cassidy executed and delivered to plaintiff his chattel mortgage upon and covering' 400 acres of wheat and 200 acres of oats then owned by Cassidy and then growing on section 11, township 114, range 51, in Harolin county, and which mortgage was on the 1st day of August, 1893, filed in -the office of the register -of deeds in and for -said oo-unty; that between the 24th day o’f August, 1893, and the 1st day of January, 1894, the said Cassidy, without -the
At the commencement of the trial defendant objected to the introduction of any evidence under th-e complaint on the ground that no demand was alleged sufficient to- support an action for conversion, which objection was overruled, an-d exception taken by defendant; and, at the close of all the evidence, defendant -moved for a directed verdict on the ground that there was no demand proved sufficient to su-ppo-rt an action -for -conversion, and which motion -was also denied and -an exception taken-. These rulings of the court are now assigned as error.
One McGee, -a witness for plaintiff, was permitted to- testify, over proper objections, -that in September, 1893, Cassidy, the mortgagor, who was then in possession of said grain, which was after-wards sold and -delivered to defendant, employed -the' witness to haul said grain to the elevator of defendant, and that said mortgagor then -stated to him that said grain -was grown on said section 11. Appellant now-urges such ruling of the court as error, on the ground that -such testimony was- hearsay and not binding upon appellant. Respondent contends that such testimony was
Among other things the court in substance instructed the jury that when a mortgagor mixes mortgaged grain with his own without the mortgagee’s consent and uses out of the bins where the intermingled wheat was stored; or sold out of the same indiscriminately, then the mortgage would attach to the entire lot, unless it is shown by the 'evidence that -at the time of the sale of the wheat to defendant, if you find that any was sold -to him, it could he ascertained the exact portions of the wheat raised on section XX, and what was raised elsewhere, then it should be divided up proportionately, and the defendant would then only be liable for such proportion of the -wheat he bought as was raised on section 11. Appellant excepted to such instruction and urges the same as error as not embodying a correct statement of -the law. As applied to the evidence in this case, we are of the opinion this instruction was proper.
Other assignments of error are urged, based on the omission to give instructions to the jury, but as it appears -that the general charge of the -court included substantially the same propositions, and for reasons already stated in relation to- the demand, no prejudicial error can be -predicated -thereon. After careful examination of the entire record, we are of the opinion that no- prejudicial error exists therein.
The judgment an-d order appealed from are affirmed.