79 N.W. 441 | N.D. | 1899
The essential facts in this case, as disclosed by the record, are as follows: The complaint, before its amendment, as hereafter stated, embodied a single cause of action for equitable relief. Its statements of fact had reference only to a seed lien claimed by the plaintiff upon a crop of wheat raised by the defendant Wormington in 1892 upon two tracts of land in Cass county, situated some miles apart. The only reference made in the original complaint to the defendants Lynch and Eddie is embraced in the following language: “That the defendants Ernest C. Eddie and Frank Lynch have, or claim to have, some interest in or lien upon the crop grown upon the lands above described for the year 1892, as aforesaid, or some part thereof, which interest or lien, if any, is subsequent to the plaintiff’s said lien; that said defendants Eddie and Lynch have taken possession of said crop of wheat, claiming to hold under their said lien or interest.” Among other features of the prayer of this complaint, the plaintiff asked as follows: “That said grain, or so much thereof as may be necessary for the purpose, be sold to satisfy said lien.” And further: “That the lien or interest of each of said defendants Ernest C. Eddie and Frank Lynch be adjudged to be subsequent and inferior to plaintiff’s said lien.” To this complaint the defendants Wormington and Lynch answered jointly by a general denial, and the defendant Eddie answered separately to the same effect. Upon the issues so joined a trial was had without a jury, at which the plaintiff offered testimony in support of the allegations of the complaint,' and the defendants Wormington and Lynch offered evidence in support of their defense. At the close of the evidence, and before findings were filed, the plaintiff filed an amended complaint, upon which the trial judge indorsed the following order: “This amended complaint is this day filed by leave of the court, before the settlement of the findings, in furtherance of justice, and in order that the facts alleged may conform to the proof offered at the trial, to all of which defendants, by their counsel, object and except, which exception is allowed, and made a part of the record. And now at this time, and before the findings are signed and settled, the court offered counsel for the defendants Eddie and Lynch the right to answer the amended complaint of plaintiff, and to submit any testimony or proof they may have growing out of this amended form of the pleadings, and to this end offers to adjourn the case a reasonable time to allow the defendants to
We notice here that one reason given by the court below for allowing the complaint to be amended was to make it conform to the facts proved. The evidence was undisputed, and established ■ the following facts: First, in 1892, the defendant Wormington raised a crop of wheat upon two quarter sections of land in Cass county, and upon which crops the plaintiff had a seed lien. The defendant Lynch was interested as part owner in one of the tracts, and the defendant Eddie was the agent of the administrator of an estate to which the other tract had once belonged, but the same had been previously sold to defendant Wormington on the crop-payment plan. The defendant Wormington, after threshing the crop, turned over to Lynch portions thereof by loading the same in cars, and shipping it to Lynch at Duluth, Minn.; and he also shipped to Eddie, at Duluth, a certain other part of said crop; but these shipments were made at different times, and were wholly independent of each other, and there was no community of interest as between defendants Lynch and Eddie, but, on the contrary, their claims upon the wheat were wholly distinct from each other, and neither had anything to do with the grain shipped to the other. Nor does it appear that they have any common interest in either of the two parcels of land upon which the grain was grown. Under such circumstances the act of Eddie in receiving the grain which he received at Duluth, and which was grown upon the land for which he was agent, was his own. act, and, if it was an unlawful act as against the plain