Hook v. Crary

ERICKSTAD, STRUTZ, and KNUD- Section 103 of the North Dakota Con- SON, provides JJ., stitution court district concur. appellate jurisdiction

shall have such may Langer be conferred law. also See MURRAY, J., being a member of the al., 523. v. State et 28 N.W.2d of this at the time of submission Court 28-32-15, supra, pro- specifically Section participate. appeal court vides how an to the district from a decision of Commission shall be procedural steps

taken. One of the re-

quired proof filing is the of service with- thirty days after notice of the decision given.

has been county appeals a decision court a similar re- court to the district Respondent, HOOK, A. Plaintiff and John 30-26-03, quirement provided by Section provides part: N.D.C.C. Crary, W. Defend and V. John P. CRARY appeal, appellant must To effect an Appellants. ants and appeal cause a notice of to be served No. 8124. on each and must other proofs with the Supreme file such notice Dakota. Court North service, undertaking appeal, and an March 1966. court, thirty days county within Rehearing May 12, Denied 1966. or from and after the date of order ** * decree. recently Bjerke’s Es- held in In re tate, N.D., failure that a proof of the notice

to file of service

appeal county court from an order thirty days date

within from and after the appeal, and

of the order was fatal to the dis-

affirmed the district court’s order

missing it. ruling Bjerke

Our is in accord general

ance with the rule. statute, required by [proof

Where appeal] must

of service of the notice of

accompany be filed with the notice * * prescribed; *. and within the time Appeal 594(7)

4A and Error § C.J.S. Bjerke

The similarities between apparent. Both involve

instant case are court,

specialized appeals a district requirements neces- statutory

in both the set forth

sary -appeal are to take the

explicitly. we affirm aforesaid

For the reasons dismissing the court district

order of the

^appeal. Lake,

Duffy Haugland, & Devils respondent. plaintiff and Wattam, Pancratz, Whittlesey & and Peterson, Fargo, Vogel, Vogel, Bright & appellants. for defendants and BURKE, Chief Justice. action, plain- complaint in this

In his Hook, tiff, conversion alleged A. John defendants, Crary V. P. and W. John 1,272.54 Amer- of stock of Crary, of shares Company Casualty and Insurance ican Life Fargo. trial of the which in a resulted verdict jury, before a in favor judgment and After $62,376.10. plaintiff in the sum of $63,620.70, any judgment, giving notice judg- moved for without the defendants or, original time notwithstanding ment Hook. At the trans- the verdict been, alternative, parties, This motion action Hook had for a new trial. between denied, months, corpo- phases, by employee in both of for four its appeal court, Crarys trial and this from the order ration of which were officers denial. stockholders. specification lawsuit is whether addition that the main issue evidence is insufficient ver- which Hook and the to sustain the transaction thirty-six Crarys exchanged judgment, money dict and are stock was there specifications alleged pledge of error are a loan with to secure the of stock outright option have occurred the trial of case. or an sale with an specifi- repurchase. shall direct our first attention insufficiency cations of of the evidence unequivocally Hook testified judgment relation to the denial not- transaction was a loan. He stated that he withstanding the the motion verdict and Crarys asked to lend him much as for a new trial. possible, collateral, with the stock Any testimony attempt to reconcile the they agreed loan to make to this case would futile basis of one dollar a He share. testified because, upon issues, most of the material that the forth written instrument set above undisputed, is directly conflicting. given Crarys was to him when he asked the however, in plain- that December give to they him held some evidence that tiff, Hook, defendants, and the that, spring his stock. in He also stated John John Crary P. Crary, and V. W. entered into a repay of he offered to the loan and by which Hook transaction delivered to stock, redeem his and offer was that this Crarys 1,272.54 a certificate for shares of Crary. refused Vincent stock Casualty American Life and In- testimony This denied categorically was Company surance and received from the Crarys. They that Hook asked said Crarys two checks in aggregate sum of loan, for they a make but that refused to $1,272.54. time, At Crarys the same buy it. alternative, they As an offered to executed and delivered to Hook an instru- share, the stock a for dollar a ment which read as follows: accepted

Hook this offer. “12/21/56 agree “We that if we sell Block of reviewing sufficiency In of the yrs Stock within 5 1962— —Before Jan. upon appeal evidence an an order We will first offer it to A. Hook & John denying judgment a motion for notwith days He will have 30 fr the date of our verdict, standing the this court will view offer up to sell to make his mind. in light the evidence most favorable (N.D.), Avron v. Plummer verdict. [Signed] Crary P. “John (N.D.), 132 N.W.2d Grenz v. Werre [Signed] Crary” “V. W. Anderson v. Stokkeland undisputed (N.D.), is also stock testimony that this there- 125 N.W.2d 665. Hook’s appreciated very rapidly. after in Crarys that he value asked the lend him to as In Crarys could, November money they caused the much as with his stock registered stock collateral; Crarys be in their names. said per November a equal cent divi- would stock lend him an to one dol amount dend was per stock; declared and was issued lar new stock share of the trans and that Crarys’ 23, 1959, basis, April completed upon action names. On was must Crarys accepted appeal. exchanging sold this be stock as true Crarys, however, it for urged testimony, other stock a which had value of that this true, even to establish Exhibit B in if is insufficient tion the offer of evidence note, no promissory curtailing loan in that there and the of the was of the examination specified, Crary concerning no rate of interest or due date defendant Vincent promise Crary and no repay. practice Agency the A. W. employees. B making loans to its Exhibit In order constitute a transaction signed by is a note which Hook on was missing it is not that the essential 18, 1957, March of an advance evidence appellants point incidentals to which ex Crary agency made to him at that pressly stated in agreement. What is testimony purpose of this time. sole 47-14-01, loan is defined by Section North practice Crary was to show the of the usual passes Century money Dakota Code. If agency making employees. to its advances from one individual another with un an Assuming corpora- that the custom the repaid, derstanding that it the law will against tion was material in action two supply 9-07-22, missing details. Section individually, the exclu- stockholders provides: North Century Code, Dakota sustaining sion of B Exhibit objection testimony on sub- to further provided perform- “If no time is ject by Crary Vincent not constitute performed, required ance of an act to be prejudicial objection error. Before ” * * * a reasonable time is allowed. made, permitted Crary Vincent to tes- Section 47-14-05 of the North Dakota Cen- tify that when were made to advances tury provides: Code agents corporation, of one form in- of written evidence of an purpose be cumulative in relation debtedness. The fact that some rejection details If for which it was offered. usually present agreement a loan were error, in error of this evidence was present agreement to which prejudice therefore not without. and Hook be, may properly 61, testified and ground no N.D.R. Rule a new trial. was, argued doubt as a circumstance affect- Civ.P. ing credibility testimony. Hook’s of Speci- next turn to a consideration We weight The given testimony to be to his 6, As and stated fications Error 7.

was, however, question jury. for the appellants’ brief, specifications re- these (N.D.), Grenz v. Werre questions to defendants to directed late Fishery. (N.D.), Suko 111 N.W.2d 360. explaining purpose of Exhibit 21, 1956,and memorandum dated December testimony, alone, Hook’s standing regarding the transaction. their intentions sufficient to warrant verdict that the transaction awas loan. The witnesses questions mo of the The asked tion for judgment notwithstanding the ver were: dict and the motion for a new trial be a loan you “If had this to intended ground that the evidence was insuffi anything you different- would have done were, cient properly therefore, denied. ly?” writing shall alleged prepared next consider you the time er “At

rors in admitting interpretation excluding and as to the your what was evidence. Specifications 1 and rejec- price 2 relate to the Mr. would have had to Hook

146

pay respect the return of the to this by jury. under sideration With [for stock] you giv- incident, following: this exhibit transcript at later date if had shows the days en him thirty notice?” immediately anyone “Q. you Did talk trans- following closing Objections questions to these were sus- ? action Appellants trial tained court. con- questions tend that answers to these were I did into the other office “A. walk out explain ambiguities admissible to in Ex- bought said, just some ‘We Swords, hibit and cite Grebe 28 v. N.D. stock.’ support con- N.W. of this tention. “Q. Who was there? n object that as “MR. I HAUGLAND: that, question proper There no hearsay. circumstances, parol testimony may ad plaintiff there “THE COURT: Was the explain ambiguous

missible to an contract you when had this talk? Dickson, Battagler or instrument. Thus evidence 38 N.W.2d 720. might office. “A. He have been which of the circumstances in the trans I don’t know for sure. action was made of the made statements “THE to each other at the COURT: Sustained. time may the transaction be admissible. re- “MR. Move that this HAUGLAND: parol however, rule, evidence never has mark stricken from the record. point permit will been relaxed to a testimony introduction undis “THE Stricken and the COURT: party his conclu closed intentions of a or disregard it.” cautioned to meaning language sions as to instrument. The statement made clear stricken statement was Reilly, Manufacturing in Witte court Co. v. Defendants, however, hearsay. claim ly ap page 44, N.W. at under the properly that it was admissible here, propriate viz.: hearsay gestae exception the As res rule. record, there was no suffi we view the question objected “The de- statement bring cient foundation to related to the fendants undisclosed exception. The statement was within secret intention at the subsequent simple trans made to a business delivery. no time of the It called for fact no incidents which action. involved existing plaintiff’s the mind. outside of shock so would cause emotional stress or * * * was, a intention was What his the could be characterized that statement jury question of to be found the fact spontaneous made under aas exclamation evidence, the irre- from shown in facts the reflective which circumstances stilled spective unexpressed intent.” of his own speaker. are of the capacity of the applied by in rule this court view that the Mathwig, 121 See also Flora v. 19 N.D. Murphy, 115 N.W. State v. Lee, Valley City 43 N.W. Bank of L.R.A.,N.S., 609, applicable In is here. Silbernagel v. Sil N.D. 175N.W. that we said: bernagel, 55 N.W.2d 713. contract been entered into and “The had testimony errone of this was not exclusion parties separated, had and what ous. simply McAllister was narra- said of a place. render tion of what had taken To Specification the exclusion 4 relates to competent or evidence as declarations Crary con- of of an answer Vincent they res must be so would part gestae, incompetent. of the have been As stated closely principal “Evidence,” Am.Jur., related to the fact in 20 Section spoken in- pages show that are under the “Clearly, to 510 and of declarations fact, principal an agent past fluence of not relating to occurrences of participate narration it.” he and over which he exercised no control are not admissible conclusion, therefore, our that charge to principal.” his striking was not testimony of this errone- In their specification tenth ous. of error the defendants assert that the court’s instruc- Specification of Error No. In it tion that defendants of had the burden rejecting judge that the trial erred in said proving the affirmative defenses forth set Akeley, Tom prove offer that defendants’ to preponderance their answer of the plaintiff, Haug- an uncle of the and John evidence, was erroneous. The record shows not, land, attorney, conversations had that this immediately instruction followed concerning claim of with defendants after outlining issues case plaintiff’s plaintiff, mentioned claim by the judge. trial He set forth the con- his that transaction with defend- parties tentions of pleadings under the objection to ants was a loan. The and the evidence then stated: proof ground on offer was sustained proof Akeley that there was no “The Court instructs the that to Haugland plaintiff. agents were De- entitle the to recover in this fendants, however, say that was some there prove allegations case he must of his proof agency, and that the fact and ex- complaint by preponderance a fair agency tent should have been submitted evidence. testimony jury. respect with to Akeley’s is as follows: agency “Likewise the burden is the de-

“Q. Did he [Akeley] call on them with prove fendants affirmative de- your authority? fenses their set forth in answer preponderance fair of the evidence.” “A. Yes. “Q. your request? And at question There can be no but instruction is correct statement could, yes. “A. He asked if he Did not contend, however, the law. Defendants yes, ask him to. I he said could.” applicable instruction It is clear from the above that issues in the because no case affirmative Akeley was a volunteer who on de defenses were jury. called submitted permission plain fendants with the this contention defendants are correct. “authority,” The word only tiff. used in the The issue submitted to the was: question, explained by is fully first the wit Was the transaction between the subsequent Akeley answer. was au security, ness’s a loan with pledge stock as only thorized to call defendants. on There or was it a alleges sale? Plaintiff awas is no evidence in Haugland the record that allege and defendants it was a sale. agent plaintiff. was the or the attorney Although deny defendants that the transac positively Plaintiff testified that he pleaded, tion was a loan and an addi as employ Haugland defense, until months after separate some tional and that the trans the incident The sale, referred to. foundation action was evidence to a as what de proof for was this insufficient and the offer fendants the contended was true nature properly rejected by was the court. We the transaction would have been admissible that, out point agency also if general even been under agree, had the denial. We there established, proposed fore, proof the offer give that it to was error the chai- them, ground

lenged jury mislead it will afford no instruction. If the considered n although allegation reversing judgment, the defendants’ that the trans- alone, sale, expressions, standing action was was de- some of its if a an affirmative erroneous, fense, might regarded instruction as or be- the then direc- contained apparent con- plaintiff may tions to find for the cause be an if he sus- there sentences, proof tained the be- burden that the trans- flict between or isolated parts may respects loan, was a and to find for the de- cause its in some action other, slightly repugnant fendants if be- sustained the burden of to each or taken,, proof abstractly, that the transaction a The cause one of them sale. some was following may instructions also contained have been erroneous.” the statement: light considered the of the instructions duty whole,

“Your first after the entering as instruction that defend- your this their deliberations of case be to ants had the burden of affirmative de- will prejudicial. jury decide from all the was evidence in the case fenses was not instructions, consider, first, and these if the trans- whether the trans- instructed 21, 1956, sale, loan, action of December action was a loan or a and that the was sale, by plaintiff, plaintiff as proof claimed or had the burden of estab- by as claimed a loan. Hav- defendants.” lish that transaction was ing found that the transaction was a We must assume jury that the followed decided, the main issue in the case was’ proceeded instruction that it the instruction as to defenses affirmative determine whether the transaction awas prejudice. result in no could issue, Upon loan. the jury was cor- rectly plaintiff challenge instructed had instruc- defendants proof. assume, burden therefore, permitted jury tion of court which that the found alleged that the to determine the con- had date of the sustained the proof upon reproduce part burden of pertinent is- version. We sue. Once that issue challenged his decided in instruction: favor, plaintiff’s right to recover in say, “It is for the jury to all some amount was established. It is well conver- evidence when such established that the court’s instructions defendants, any, sion if took will be Quam considered a whole. v. 1957, place, 8, whether on November Wengert (N.D.), Reserva when the defendants had stock such Corp. tion Motor Mayer, 431, v. 77 N.D. registered in their names books on the McGregor N.W.2d v. Great North Life Casualty American & Com- Co., ern Ry. 154 N.W. 9, 1957, pany, or on December at the Ann.Cas.1917E, 141. time of the stock dividend declared

In the case McGregor company, April Great North- insurance or on ern Railway Co., supra, disposed at at page N.W. the time the stock was quoted we approval defendants, with from Thomp- any or other date Trials, son on Section you may as follows: shown the evidence which conversion, find was date of such “The charge is entitled to a reasonable any. course, if only Of there could be interpretation. as a construed one conversion and one of conver- date whole, in way same connected sion.” which it given, upon presump- tion that any only did not overlook The defendants contend that one of portion, gave but weight specified due possibly to it the dates could have * * * whole; If, conversion, construed, when so alleged been date of the presents viz., fairly the law correctly November when the defend- jury, the names; a registered manner not ants had the stock in their calculated to

149 previous thereby acquired ap- they our their own names and advert two and of parent dispose does support decisions of this contention. title of -issue. Reibold, possession It Quanrud, Brink & N. is conceded that the Larson v. 78 was, 70, 743, 230, stock in the first D. 29 A.L.R.2d the defendants -instance, rightful. inquiry if authority theory as for their So our must cited that case, it directed toward a resolution of when this there was a conversion in this possession took on a tortious character. would have to have occurred when the de- presented the fendants stock certificate of corporate pledgee The of stock plaintiff the new cancellation had may have such stock transferred into his in their issued own names. certificates name, undertaking his as consistent with readily distinguishable facts of Larson are pledgee, being without liable as a converter Larson, from those this case. In new 579, following In 116 thereof. A.L.R. certificates were in the issued names of appears: statement persons pledgee, other than clearly act inconsistent rights with the of “A pledgee having, according to the pledgor; whereas in the case before us rule, general right to cause a transfer the new certificates were issued of the stock to be made to his name on the who, pledgees, names of the defendants as books, corporate follows, course, of that according to the authorities discussed liability as for cannot im- conversion hereinafter, entitled to were effect posed upon doing. him for And so vari- transfer long relinquish as support proposition ous cases that possession of stock. Lamoreaux Ran- transfer, application pledgee on the of a dall, 697, 104, 208 N.W. 44 A.L.R. stock, corporate on the the stock 1315, defendants, upon by also relied corporate books and issuance of a proposition is cited for the con- not, generally, new to him certificate does version could not have occurred when the constitute a of the stock conversion stocks were sold. Lamoreaux is also fac- him.” tually distinguishable from the instant case. Lamoreaux, Randall, sheriff, one recognized right in Second Na- seized certain grain levy under a shocked tional Bank of Grand First Forks v. Na- plaintiff’s against execution wife. Thomas, 50, Bank tional of St. 8 76 title claimed to three-fourths Waterbury And in N.W. 504. Moore v. crop under a lease. Since initial Co., 201, 97, Tool 124 Conn. 199 A. 116 taking was plaintiff’s inconsistent with the 564, Supreme A.L.R. Errors Court of right possession lease, under the observed, of Connecticut at 101: time, conversion existed as rather possession by “In the instant case grain than when the was sold. In the company orig- the tool of the stock present case, however, the transfer of the inally rightful. It was tool held certificate into the defendants’ names was company security payment entirely consistent rights with -their under general the debt to it. rule the pledge. pledgee right of shares has a have The law of conversion stock on the books is con transferred possession, cerned with company doing not title. We have so does not consti- Stoddard, held that the essence of conversion is not tute conversion. Skiff v. 63 acquisition property by 21 wrong Conn. 26 A. 28 A. doer, 102; wrongful deprivation but the of it to L.R.A. First National Bank v. Co., the owner. Annuity Frank v. (N.D.), Schaff 123 Hartford & 45 Life Ins. 827; N.W.2d Leach (N.D.), v. Kelsch 106 Conn. Palmer v. O’Bannon Cor- N.W.2d 358. poration, Thus the fact that the defend Mass. N.E. registration ants effected Boston, of the stock in Chase v. Mass. 79 N.E. 150 737; App.Div.

736, Seaman, damages upon the 133 the were based v. assessed Jones 288; Fletcher, Cyclo- 127, 12 of the of stock another com- 117 value shares N.Y.S. * ** Corporations, pany, $63,620.70, pedia admittedly 5646. worth which § acquired by pledgee to the were the defendants in ex- possession was entitled change property repaid. pledged it It view of of the until was stock. fact, trans- the to have the certificates (cid:127)this we need discuss defend- was entitled into certifi- the ferred its own name. ants’ contention failed prove property all remained in its hands on cate at times value No- 8, subject clearly have to its control could vember The record demon- 1957. 23, upon pay- that, April 1959, pledgor strates on the defend- been delivered to circum- exchanged pledged ment of the loan. Under ants for stock stock stances, $63,620.70. company of title was another worth mere assertion conversion. not sufficient to constitute a App.Div. 421, Leary, v. 91

Brown 100 Even if we assume were to 463, dismissed, appeal 464, N.Y.S. 187 permitting jury the trial court erred in 558, 559, 80 N.E. 1106. N.Y. April 23, to consider dates other than 1959, conversion, prejudicial as the date pledge “A nominal transfer of error predicated upon ground, this cannot put property mot does beyond jury inasmuch as at a verdict "arrived pledged control of amount does not Furthermore, consonant with this date. Day to a the pledge. conversion of v. theory defendants tried this case on the Holmes, 306, 103 Ritchie v. Mass. province that was within the Burke, C.C., 16, 20; 109 F. Davis v. to determine the date of conversion. This Hardwick, Tex.Civ.App. 71, 43 94 S. by requested is shown the instructions Bank, W. Hunter First v. National appellant An defendants. will not be 62, 66, 734; Jones, 172 Ind. 87 N.E. Col allege heard to given error in instructions Securities, Ed., lateral 3d 571b.” § request court, at his trial and he is original Since cancellation of the cer- estopped object that an instruction was tificate and issuance of new certificates specific, sufficiently it was not in the names of the defendants, under the complete, misleading. or that it was Hoffer cited, entirely authorities are consistent with Burd, v. N.W.2d 282. pledge, justified the jury was in in- ferring that a conversion did not occur on assignments Certain other of error November 1957. specified by appellants, have been based upon rulings of the trial court ad Similarly, we do not see how a mission evidence and court’s conversion Decem could have occurred on jury. instructions necessary It is not ber on stock date which the to review length. these at Most of them dividend declared. The defendants been disposed have of or rendered imma completely matter, were inactive terial opinion. what have we said in this something equivalent to affirmative action specifications All assigned as error necessary support an action for con carefully have been preju No considered. Nye Johnson, version. 4 N. dice the defendants have resulted could 819. W.2d any from the matters raised such specifications. They are found to be with hand, the other when the de On out merit. possession fendants transferred of the stock April on It follows that the place. a conversion order took district appealed pointed It court that the out must be affirmed. established date, conversion as is affirmed. date since decide, all of the evidence PER CURIAM: instructions, these whether case and by prepared opinion was foregoing 21, 1956, was a transaction of December Burke, Chief Honorable Thomas J. loan, plaintiff, or a claimed adopted by Justice, his death. before sale, as claimed the defendants.” opinion undersigned as the of this court. jury must followed assume TEIGEN OBERT C. so, it first Having this instruction. done Chief Justice between the found transaction ALVIN C. STRUTZ having found it to to be a loan. The jury RALPH ERICKSTAD J. have defendants could not be a Justices in- portion prejudiced been complain of. now struction KNUDSON, J., being not member this Court at the time of submission of consider- jury must be Instructions case, participate. did not Although entirety. the instruc- ed their of, alone, may complained standing tion Rehearing.

On Petition for erroneous, it must insufficient or even in- the entire considered connection with CURIAM, PER charge, If taken to- struction. the whole appellants The defendants and have filed as to the correctly gether, advises petition rehearing ground for on the Hein, law, v. Froh the error is cured. the trial court error committed reversible v. Ferderer 39 N.W.2d by instructing that the burden was 169,42 Ry., N.D. N.W. Pacific Northern prove on the defendants to de- affirmative (N.D.), Moe Kettwig 2d fenses, were, when no affirmative defenses 853. fact, pleaded. opinion in this In the case, Burke, Judge written the late we rehearing is denied. petition erroneous, instruction, though held that this prejudicial. not TEIGEN, J., and STRUTZ C. The basis for our determination that such ERICKSTAD, JJ., concur. instruction, erroneous, prej- though was not udicial was that the trial court had instruct- jury:

ed the MURRAY, be- JJ., KNUDSON ing at the time members of the Court duty entering “Your first after participate. submission of this your case will be to deliberations notes were taken indebtedness, as evidence and the any legal “Interest indebtedness plaintiff, Hook, signed that he testified per per shall be at the of four rate cent B). testimony (Exhibit note of this None annum unless ex- a different rate not to was stricken record. Thus evi- from the specified ceed the rate section 47-14-09 corporation dence of the custom the ” * * * writing. contracted for in participation of Hook’s in it was before the The absence of only a note but absence jury. The excluded evidence would

Case Details

Case Name: Hook v. Crary

Court Name: North Dakota Supreme Court

Date Published: Mar 21, 1966

Citation: 142 N.W.2d 140

Docket Number: 8124

Court Abbreviation: N.D.