103 Minn. 82 | Minn. | 1908
Action for the conversion of one hundred sixty five bushels and thirty pounds of No. 2 wheat. Verdict for the plaintiff, and the defendant appealed from an order of the district court of the county of Clay denying its motion for judgment notwithstanding the verdict, or for a new trial.
The plaintiff’s claim of title to the wheat was based upon a chattel mortgage given by Thomas Cech to it upon certain personal property therein described, and a two-thirds interest in all the crops, including wheat, to be sown, grown, and harvested on the farm occupied by the mortgagor during the farming season of 1905, to secure the payment of 'an indebtedness to the bank, evidenced by two promissory notes, in the sum of $438.82. The chattel mortgage was duly executed, acknowledged, and filed in the office of the proper town clerk. It contained the usual power of sale, to the effect that the
1. The defendant moved the court that the plaintiff be required to elect “whether its case was to be tried on the theory of trover or breach of contract.” The motion was denied, and the ruling is here assigned as error.
The complaint alleged a cause of action against the defendant for conversion of the wheat, and contained no suggestion that the action was based on contract; hence no case for an election was presented. After the debt secured by the mortgage became due and was unpaid, or other conditions of the mortgage broken, the legal title to the mortgaged property was in the mortgagee, and the plaintiff might have alleged in the complaint generally that it was the owner of the property, and that the defendant had converted it, or, as the plaintiff elected to do, the source of its title and that the defendant converted the property. In either case the complaint would state a good cause of action for conversion. Close v. Hodges, 44 Minn. 204, 46 N. W. 335; Scofield v. National Ele. Co., 64 Minn. 527, 67 N. W. 645. The defendant, however, claims that the complaint does not state a cause of action because the power of sale and right to take possession of and sell the property in case of default given by the mortgage is the exclusive remedy. There is no merit in the claim, for, even as between the mortgagor and mortgagee, the remedy is not exclusive, but simply cumulative. The mortgagee in a chattel mortgage may foreclose his mortgage by action or maintain replevin against the mortgagor after condition broken. If his remedy was limited to the seizure and sale of the mortgaged chattels under the power of sale in the mortgage,, then, if the property was sold
2. The defendant owned and operated a grain elevator in the vicinity of the farm occupied by the mortgagor, and upon which the grain covered by the mortgage was raised. The plaintiff called the person in charge of the elevator at the time of the alleged sale of the wheat to the defendant, and elicited from him evidence tending to show that he purchased the wheat at the elevator from the mortgagor for the defendant. The defendant claims, in this connection, that the trial court permitted the plaintiff to show the agency of the person in charge of the
He also testified that a man by the name of Thomas Cech (the same -name as that of the mortgagor), in the fall of 1905, brought wheat to the elevator, and that he purchased it for the defendant and paid for it; that he was not certain of the grade, but thought it was No.
The plaintiff served notice on the defendant’s attorneys to produce on the trial the ticket and records relating to the sale by Thomas Cech of wheat at the elevator. On the trial plaintiff called for the ticket, and was answered by defendant’s counsel that he had never seen it, and did not have it. No objection was made as to the sufficiency of the notice. A witness was called by the plaintiff, who testified that he was sent to the elevator by the plaintiff to find out how much grain was received from Thomas Cech, and was there shown by the agent then in charge a record of the grain bought by the defendant. He was permitted, over the objection of the defendant, to testify that he and the agent examined the record, and it showed that on November 4, 1905, there was purchased, at the- elevator, of Thomas Cech three loads of wheat, amounting to one hundred sixty five bushels and thirty pounds. The admission of this testimony is assigned as error, for the reason that the original records would not have been admissible in evidence if produced, for they were not account books, and, further, that the evidence was merely hearsay.
The original record, if it had been produced by the defendant, would have been admissible in evidence as tending to show an admission on its part that it purchased the number of bushels of wheat
3. The defendant also contends that the trial court erred in.not submitting to the jury the question whether the plaintiff, by its conduct, waived its lien on the grain raised by the mortgagor. The claim is based upon evidence tending to show that the plaintiff did not look after the wheat when it was threshed, or have any. one there to take it away when threshed, or send any teams for it, or have any talk with the mortgagor as to when he would thresh. Consent by the mortgagee to sale of the wheat cannot be implied from any or all of such facts, and the evidence was clearly insufficient to authorize the submission to the jury of the question whether the plaintiff had waived its lien. Endreson v. Larson, 101 Minn. 417, 112 N. W. 628.
4. The last claim urged by defendant is that there was no evidence to support the verdict. The evidence to show that a part of the wheat covered by the mortgage was sold by the mortgagor to the defendant was in important particulars circumstantial. There was evidence tending to show that the mortgagor, Thomas Cech, occupied .and farmed the land described in the mortgage during the farming season of 1905 for a share of the crops; that he did not raise any other wheat or grain that season except on such farm; that, when the grain was threshed, it was divided between him and his landlord, and his share placed by itself in a bin in the granary which was in his possession; that he left the farm about November 15 thereafter; that the plaintiff’s assistant cashier went to the farm the fore part of December, and in answer to a question whether it was before or after the crop was.sold answered that part of it was sold, that he did not know “if it all was sold — the biggest part, though”—
The jury were justified in finding that Thomas Cech, who sold the wheat, and the mortgagor, were one and the same person. There was identity of name, and no evidence that there was any other Thomas Cech in that vicinity. Again, the evidence shows that the man who sold wheat to the defendant signed his name upon the ticket which was retained by the defendant. If this ticket had been produced by the defendant on the trial, a comparison of the signature thereon with the signature of the mortgagor on the note and mortgage in this case, which were in evidence, would have determined to a reasonable certainty whether the mortgagor and the party who sold the wheat were one and the same person. The jury had a right to infer that they were, for, as said by the court in McGuiness v. School District, 39 Minn. 499, 41 N, W. 103: “Every reasonable intendment and presumption will be against the party who withholds the writing which might definitely establish the matter in controversy.”
We are of the opinion that the verdict is sustained by the evidence, within the rule applicable to cases where the trial judge has approved the verdict.
Order affirmed.