Nos. 16,712—(59) | Minn. | Dec 9, 1910
Plaintiff,' as owner, executed a farm lease of certain land to one Goudy, who cultivated a crop of grain thereon and employed defendant to thresh the same. The lease provided for the sharing of the crop between plaintiff and her tenant, each to bear a proper proportion of the threshing bill. The grain was divided between them at the machine as it was threshed. Of the grain assigned to plaintiff, defendant retained in his possession certain barley as security for the payment of plaintiff’s share óf his claim for threshing, deposited the barley in an elevator, and took a receipt therefor. . Defendant’s.
1. Defendant has submitted a preliminary motion to dismiss this appeal, upon the ground that the appeal from the justice court should have been taken to the municipal court of the village of Spring Valley, in which the justice court was situated, instead of to the district court; that the district court had no jurisdiction of the appeal, and should have granted defendant’s motion to dismiss the appeal. This contention of defendant is based upon the provisions of chapter 146, p. 236, Laws 1891, establishing municipal courts in villages of the class to which the village of Spring Valley belongs. That act, which was expressly repealed by section 5539, R. L. 1905, provided- (p. 276, section 28, sube. 11) that appeals from justice courts in the village should be taken to the municipal court. It is claimed by defendant that section 698, R. L. 1905, provided for the continuance of village charters, and section 124, R. L. 1905, confirming and continuing the jurisdiction of municipal courts, perpetuated section 28.
It is settled that statutory provisions establishing municipal courts do not constitute any part of the charter of the municipality in which the court is situated. State v. Porter, 53 Minn. 279" court="Minn." date_filed="1893-05-19" href="https://app.midpage.ai/document/state-ex-rel-shissler-v-porter-7967885?utm_source=webapp" opinion_id="7967885">53 Minn. 279, 55 N. W. 134; Jackson v. Board of Education, supra, page 167, 127 N.W. 569" court="Minn." date_filed="1910-08-26" href="https://app.midpage.ai/document/jackson-v-board-of-education-7975502?utm_source=webapp" opinion_id="7975502">127 N. W. 569; State v. Fleming, supra, page 136, 127 N.W. 473" court="Minn." date_filed="1910-08-12" href="https://app.midpage.ai/document/state-ex-rel-simpson-v-fleming-7975495?utm_source=webapp" opinion_id="7975495">127 N. W. 473. Section 698, R. L. 1905, therefore, does not apply. Section 124, R. L. 1905, relates exclusively to the jurisdiction, practice, and procedure in municipal courts, and unless- the section is to be extended so as to apply to appeals from justices of the peace, it is difficult to see how it can be
2. Defendant in his answer alleged he retained the grain under and by virtue of his lien for threshing “all of plaintiff’s share of said oats and barley,” and alleged, further, the delivery to plaintiff of the balance of her share of the grain upon condition that defendant had a lien upon the amount kept, to which plaintiff consented. Plaintiff, claiming these two statements to be inconsistent and the pleading of inconsistent defenses, moved that defendant be required to elect between them. The claims were not inconsistent, and the motion, was properly overruled. Minneapolis Threshing Machine Co. v. Peters, supra, page 429, 128 N.W. 578" court="Minn." date_filed="1910-11-25" href="https://app.midpage.ai/document/moore-v-carlson-7975563?utm_source=webapp" opinion_id="7975563">128 N. W. 578.
3. The court struck from the complaint the claims for additional damages incurred by plaintiff in seeking to recover the grain. In view of the fact that the jury returned a verdict for the defendant, it is not necessary to discuss the propriety of this ruling.
4. Defendant did not attempt to perfect a thresher’s lien under sections 3546, 3547, R. L. 1905.- Notwithstanding this, the court held that defendant had a lien upon the grain so retained by him for the cost of threshing the same and his additional expenses in caring for it. We think the correctness of this ruling is settled by the decision of this court in Itasca Cedar & Tie Co. v. Brainerd Lumber & Mercantile Co., 109 Minn. 120" court="Minn." date_filed="1909-11-12" href="https://app.midpage.ai/document/itasca-cedar--tie-co-v-brainerd-lumber--mercantile-co-7975098?utm_source=webapp" opinion_id="7975098">109 Minn. 120, 123 N. W. 58.
5. It is argued that, even if defendant had a possessory lien, he lost it by depositing the grain in the elevator.
6. An examination of the evidence with reference to the tenders of payment by and on behalf of plaintiff convinces us that the court correctly ruled that the tender claimed to have been made on plaintiff’s behalf by the banker with whom she deposited the amount of the original claim was not a sufficient tender of payment, and that the trial court correctly submitted to the jury the sufficiency of the tender claimed to have been personally made by the plaintiff to the defendant. The finding of the jury was to the effect that defendant’s version of this transaction was true. If so, there was no sufficient tender. The evidence upon this point was conflicting, and was sufficient to sustain the finding.
7. Error is alleged because of the trial court’s ruling that plaintiff and Goudy were tenants in common of the grain. We think this was entirely immaterial, and are unable to see how any prejudice resulted to plaintiff. If the.title was jointly in the plaintiff and her tenant, the lien could be enforced; and we see no reason why it could not be enforced, whether the title to this particular grain was solely in plaintiff or in the tenant.
Order affirmed.
On December 30, 1910, the following opinion was filed:
In the .opinion filed in this case it was said (paragraph 5) defendant did not lose his lien by depositing the grain in the elevator. The reasoning on which this statement was based was probably wrong. Adams v. Castle, 64 Minn. 505" court="Minn." date_filed="1896-05-25" href="https://app.midpage.ai/document/adams-v-castle-7969399?utm_source=webapp" opinion_id="7969399">64 Minn. 505, 67 N. W. 637. But the conclusion was correct. Section 2092, R. L. 1905, which is a perpetuation of chapter 86, Laws 1876, declares the delivery of grain to a warehouse for storage, although mingled with, that of others, shall be deemed a. bailment, and not a sale. Possession of the warehouse receipt is constructive possession of the property, and many decisions of this
The petition for a reargument must be denied.
See opinion on page 486, infra.