170 N.W. 307 | N.D. | 1918
Lead Opinion
In 1916, the plaintiff was the owner of part of section 5-154-72. Under contract with plaintiff, Andrew Lindseth, or Lindseth Brothers farmed the land, sowed, harvested and threshed a crop of barley amounting to 396 bushels. Lindseth was to furnish the seed grain and to have all of the hay and each party was to pay for half of the twine bill and to have an equal share in the crop. After threshing Lindseth hauled the barley to the grain elevator. Then, on August 30, 1916, R. W. Wenzel, the attorney and agent of defendant, claimed half the barley and in his presence it was sold to the elevator company and its check was given to Lindseth Brothers, and they made their check to Wenzel for the gross price of half the grain, $129. On that check payment was stopped because, by inadvertence,
Under the Code there is but one form of action which is named a civil action. All forms of pleading are abolished. The first pleading on the part of the plaintiff is the complaint which should contain a plain and concise statement of the facts constituting a cause of action. As the facts may not all be known, at the time of commencing an action, and as parties are not all skilful in making a proper statement of facts, the courts may permit pleadings to be amended before and after judgment and during the trial and may disregard errors and defects. In this case, the plaintiff might well have moved to amend his complaint to conform to the evidence and show that defendant had been a party to the sale of the grain and had on September 6, 1916, received from the sale the net proceeds, being $106.40. But the defendants were not in any way misled by the form of the complaint; they and their attorney, Wenzel, knew that they had received the money and had no right to retain it. Under date of October 24, Wen-zel wrote George W. Eraine, saying: “Through mistake the North Dakota Grain & Land Company obtained the landlord’s share of the crop on your 120 acres in section 5-154-72 instead of the 160 in section 7, 154-72.”
The defense made is not to the credit of either the defendants or their attorney. It comes too near the line of pettifoggery. Counsel for defendant knew to a cent the precise net amount defendant had received from plaintiff’s share of the crop, and still he advised them to stand the risk of a suit and a judgment when he should have advised them to refund the money.
And the court fell into the error of holding that under a cropping contract, when the landowner is to deliver half the crop, then until delivery he holds title to all the crop; and when the tenant is to deliver half the crop, then until delivery, he holds title to all the crop; and that either party having title may sell all the crop and let the other
The case is entirely clear; it admits of no doubt; the plaintiff is entitled to recover from defendant $106.40 interest at 6 per cent from September 6, 1916, and the costs of both courts. Let the judgment be entered accordingly.
Reversed and remanded.
Concurrence Opinion
(concurring). I concur in the conclusion reached by Mr. Justice Robinson. I am not prepared, however, to concur in what is said by him arguendo in his opinion, and I disapprove of his censure of defendant’s counsel.
Concurrence Opinion
I concur in the result, but in view of the theory upon which the case was brought and tried below, and of the views of the trial judge, it is not too much to say that the remarks concerning counsel are wholly uncalled for.