79 N.W. 851 | N.D. | 1899
Lead Opinion
On and prior to February 20, 1897, the defendants, as co-partners, owned and operated a public warehouse at the village of Drayton, in Pembina county, in this state. On and between the 18th day of December, 1896, and the 9th day of January, 1897, the plaintiff delivered to the defendants at said warehouse 600 bushels of No. 1 hard wheat, to be stored until such time as plaintiff desired to sell. On February 20, 1897, said warehouse, with its contents, was destroyed by fire. On March 17, 1897, plaintiff demanded of defendants 600 bushels of No. 1 hard wheat, or the then value thereof. His demand was refused. This action was then brought to enforce the demand. The complaint set forth the delivery of the wheat, and that plaintiff was still the owner thereof, the demand and refusal, and the value; and the prayer was for the delivery of 600 bushels of No. 1 hard wheat, or for a money judgment for the value thereof. The answer set up the destruction of the warehouse by fire, and alleged that the wheat received from plaintiff was destroyed therein. By reply the destruction of the warehouse was admitted, but it was denied that the wheat delivered by plaintiff was in the warehouse at the time of its destruction. Plaintiff introduced testimony tending to support all the allegations of his complaint, and rested. Defendants introduced no testimony, but moved for a directed verdict in their favor. This was denied, and an exception saved. On plaintiff’s motion the Court directed a verdict for plaintiff for the sum of $360; that being the value of the 600 bushels of wheat on the day of the demand, as shown by the undisputed testimony. Nothing was said in the verdict about the ownership or right of possession of the specific wheat delivered, nor was its value fixed, in terms. A motion for a new trial was made and denied, and judgment rendered on the verdict. The appeal brings up the ruling on the motion for verdict and on the motion for a new trial, and the judgment.
It is urged, however, that the judgment cannot stand, because the action was in replevin, and the verdict was an ordinary money verdict, and contained no finding as to the ownership or right of possession of any particular wheat, or the value thereof, — matters which the statute specifically requires the verdict to cover in replevin actions. It is claimed that the action is in replevin, because the complaint alleges that the plaintiff is the 'owner of the wheat delivered to the defendants, and entitled to the possession thereof, and the prayer is in the alternative. Under the common-law system of pleading, such allegations were often held decisive in distinguishing the action of replevin from trover. But we do not consider any such distinction applicable in this case. Our statute fixing the rights of the parties in cases of this character is somewhat peculiar. Section 1790, Rev. Codes, specifies in general terms the form of warehouse receipts to be issued where grain is delivered for storage, and expressly declares that nothing shall be inserted in such receipt limiting the liability imposed by law upon the warehouse man. In this case the receipt issued was not such as the statute requires, but we understand both parties to' treat it — and we think
What we said on the motion for a directed verdict disposes of the claim that the evidence fails to establish a conversion. Of course, if the wheat was burned, it could not be converted. Defendants alleged that it was burned. The burden was upon them to show that it was burned, as the pleadings did not admit that fact. They introduced no evidence. They received the grain. They have refused to return it, or other grain in lieu thereof, or to account for it in any manner. The statute declares that they were
Concurrence Opinion
I concur in the Affirmance of the judgment. The facts established by the pleadings, in connection with those established by undisputed evidence, which was received without specfic objection thereto, are, in my opinion, sufficient to show a liability to the amount recovered. The complaint states a cause of action. This being true, I deem it unnecessary, under the facts shown by the record, to determine whether claim and delivery, or an action for damages as for a conversion of the grain, was the proper remedy, or whether either action would be the proper remedy, in view of the anomalous provisions of the statute.