118 N.W. 242 | N.D. | 1908
This action was brought in the district court of Pembina county to recover damages for the alleged conversion of certain wheat. A jury was waived, and the plaintiff recovered judgment in the court below, from which judgment this appeal is prosecuted. The grain in question was raised by one Alice upon plain
It is appellant’s contention that plaintiff, by taking and accepting the chattel mortgage from Alke, thereby necessarily waived his right under the farm contract to retain the legal title to all crops in him. In other words, it is contended that, by accepting such chattel mortgage, plaintiff definitely decided that he would treat the grain as the property of Alke, and rely wholly upon the chattel mortgage for his security. Appellant’s • counsel says: “It is not a question of contract or estoppel, but merely the question whether plaintiff, having the election to treat the grain as his under the contract, or to yield the legal title to- Alke and fall back on his chattel mortgage, decided to rely upon the chattel mortgage. * * What the plaintiff had open t-o him was in the nature of an election of remedies. He could take the position that there had been no -division, and therefore that he could claim the technical legal title under the contract in way of security for the amount specified in the note and secured by the chattel mortgage, or he could proceed on the theory that the legal title to this grain representing a part of Alke’s one-half was in Alke, and he would em
As before stated, in plaintiff’s original complaint he sought to recover upon the ground of his special property by virtue of the chattel mortgage. Subsequently he was permitted to amend by
Appellant’s counsel next contends that, under the modern doctrine, the provision of the farm contract reserving title in plaintiff to Alice’s share of the crops amounted merely to> a chattel mortgage, and hence as against defendant, an innocent purchaser, the contract should have been filed in order to be effective. Counsel cites two Minnesota cases: McNeal v. Ryder, 79 Minn. 153, 81 N. W. 830, 79 Am. St. Rep. 437, and Agne v. Skewis-Moen Co., 98 Minn. 32, 107 N. W. 415. In the former certain prior decisions of that court were reviewed, and the members of the court did not agree as to the nature and extent of such prior adjudications. Not only this, but Collins, Judge, wrote a vigorous dissenting opinion
Appellant’s last contention is that there was no sufficient demand made upon defendant for the possession of the grain in question prior to the commencement of the action, and hence a conversion was not proven. -Such contention is necessarily based upon the premise that a mere purchase of property from a person having no title does not constitute a conversion if the purchaser acted in good faith, and without notice of the vendor’s want of title or right to sell. The authorities upon this question are apparently in hopeless conflict. See 28 Am. & Eng. Enc. of Law (2d Ed.) 704, where the cases are collated, and where the author of the article there treated states the better doctrine to be contrary to appellant’s contention. It is unnecessary for us to adopt either rule in this case. Assuming, without deciding, that a demand is necessary under the facts disclosed.in the record in order to prove a conversion, we are agreed that such proof was sufficiently made. It appears that 30 days prior to the commencement of suit plaintiff made a special trip to Bathgate for the sole and only purpose of demanding this grain from defendant, and that he found defendant’s agent Bauer at the hotel, where he informed him that he was there to demand the wheat that he Bauer, as such agent, had bought of Alice, and wanted it, and- that defendant’s said agent replied, in substance, that he did not know anything about it. It also appears that defendant at no time thereafter -evinced any disposition to recognize in any manner plaintiff’s claim to or demand for such grain. Whether plaintiff was prepared at the time of making the demand to accept the possession of the wheat does not appear, nor do we think this material in the -light of defendant’s attitude regarding plaintiff’s claim of right thereto and his .unequivocal demand therefor. In First National Bank v. Minneapolis & N. Elevator Co., 11 N. D. 280, 91 N. W. 436, this court held a demand from a distance, and by letter which was unanswered afforded a sufficient foundation for a conversion action upon return of the registry receipt showing the delivery of such letter. Surely, if such a
Having disposed of each of appellant’s points adversely to his contention, the judgment appealed from should be affirmed, and it is so ordered.