105 P. 407 | Idaho | 1909
— This action was brought to recover the value of 403 sacks of wheat and 289 sacks of barley, alleged to be of the value of $789.70. It is alleged that the respondents wrongfully took possession of said grain and converted same to their own use. The respondents by their answer denied the material allegations of the complaint. The case was tried by the court with a jury and verdict rendered and judgment entered for the plaintiff, awarding the plaintiff the sum of $875.35 against the respondent Sheppard only, and judgment was entered dismissing the action as to the other
Counsel for appellant contend that the plaintiff was entitled to judgment, not only against Sheppard, but also against the other two respondents, Fuller and Olson. Appellant claims title to said grain by virtue of a lease executed by said Sheppard and wife to one James A. Mattoon. That lease was verbally assigned to the appellant. The evidence shows that such assignment was acquiesced in by Sheppard.
The assignments of error go to the sufficiency of the evidence to sustain the verdict. It is contended by counsel that the evidence clearly shows that the defendants, Fuller and Olson, as well as Sheppard, appropriated the grain referred to in the complaint to their own use, or at least hauled it from the ranch on which it was grown, and that they were equally guilty of conversion thereof as Sheppard; and that if Sheppard were guilty of converting the grain, respondents Fuller and Olson were equally guilty under the evidence, as one who aids and assists in wrongful taking of chattels is liable for their conversion, and counsel cites in support of that principle, Starr v. Bankers’ Union, 81 Neb. 377, 116 N. W. 61. The rule laid down in that case is no doubt correct, the principal question being whether the evidence supports the verdict.
In our view of the matter, it is not necessary for us to go into an extended discussion or citation of the evidence. The first question to be determined is whether, under the evidence, the grain referred to was ever delivered to the plaintiff. The jury by its verdict evidently found that it was not, and it is a well-recognized rule of law that no title is acquired by a landlord in grain raised by a tenant until the division and delivery thereof to him. (Symonds v. Hall, 37 Me. 354, 59 Am. Dec. 53; Dockham v. Parker, 9 Greenl. (Me.) 137, 23 Am. Dec. 547.) The witness Marker, who was the tenant of the plaintiff, testified as follows: “I rented the land of Mr. Eaves. My arrangements with Mr. Eaves were I
The above-quoted testimony clearly shows that the grain was not delivered, or, at least, that there was a direct conflict in the testimony as to the delivery of the grain by Marker to Eaves, the plaintiff. Marker, a disinterested witness, testified positively that he did not deliver the grain to Eaves, but, on the contrary, put it into the sacks paid for by Sheppard, and the plaintiff himself testified that Marker informed him that “there should not be a sack of grain hauled out of the field by either party until it was settled who the owner was.” Eaves testified that the grain was delivered to him and Marker that it was not, thus making a direct conflict in the testimony as to the delivery. Under the well-established rule of this court, a judgment will not be reversed on account of the insufficiency of the evidence when there is a substantial conflict therein. (Church v. Van Housen, 15 Ida. 249, 97 Pac. 36; Camas Prairie State Bank v. Newman, 15 Ida. 719, 128 Am. St. 81, 99 Pac. 833; Later v. Haywood, 15 Ida. 716, 99 Pac. 828, and the decisions of this court therein cited; also see. 4824, Rev. Codes.)
The plaintiff could not recover in this ease unless the grain had first been delivered to him by his tenant, and as there is a substantial conflict in the evidence upon the question of delivery of the grain to the plaintiff, the verdict of the jury will not be disturbed. It is true the jury found a verdict in favor of the plaintiff as against Sheppard, but there is no appeal on the part of Sheppard and the verdict and judgment must stand as to him. And had Sheppard appealed, the verdict and judgment would have been sustained as to him because of the rule that where there is a substantial conflict in the evidence the verdict will not be disturbed.