| N.D. | Jul 7, 1919
This is an appeal from a judgment ana from an order denying the defendant’s motion for a judgment notwithstanding the verdict or for a new trial. The action is one to recover damages for alleged conversion of 898 bushels of rye which were raised in 1915 and delivered to the defendant elevator company at Wolford, North Dakota. The rye in question was grown upon land owned by Mrs. F. E. Kerr. The grain was delivered to the defendant as Mrs. Kerr’s grain, and storage ticket No. 6356, running in her favor, was made under date of August 28, 1915. On September 1st, Mrs. Kerr gave a written assignment of the ticket to the plaintiff, and he received the ticket direct from the defendant’s agent. On September 15th, the plaintiff made a written demand for the rye, but it was not delivered, and on the following January 27th the demand was repeated, the defendant being requested on this occasion to deliver the rye at Minneapolis. It seems, from exhibits attached to the motion papers, that soon after the grain was first delivered for storage, the agent of the defendant advised it that there was a dispute as to who was entitled to the money, and that defendant should hold the grain in case the ticket
■ The appellant’s principal argument in support of the claim that there was error in the judgment is that the deposit in court exonerated the defendant from the liability sought to be enforced in the action. Section 7594, Compiled Laws of 1913, is relied upon in this connection. The section is as follows: “Whenever two or more persons make claim for the whole or any part of the same money, personal property or effects in the possession or control of any other person as bailee or otherwise and the right of any such claimant is adverse to the right of any other claimant, or is disputed or doubtful, and the bailee, custodian or person in control of any part of such property, money or effects is unable to determine to whom the same rightfully belongs, or who is rightfully entitled to the possession thereof; or whenever such bailee, custodian or person in control has notice or knowledge or any right or claim of right of any person in or to any part of such property, money or effects adverse to the right of any other claimant therefor; or whenever any debt, money, property or effects owing by or in the possession or under the control of any person may be attached by garnishment or
From the statement of facts preceding, it is apparent that the property or a duplicate storage ticket representing it was not deposited with the clerk of the court, but that the deposit consisted of an amount of money which is the equivalent of the value of the grain, less storage charges, on the day the summons was served on the defendant. Appellant’s counsel contends that the action is one involving personal property or its value, and that in such case the statute expressly authorizes
If the defendant in the instant case was justified in its prior refusal, as would be the case if its refusal to deliver were the result of a reasonable effort, in good faith, to ascertain the validity of adverse claims, it would follow that no conversion took place. But it cannot, by the delivery in court of a value fixed as of a subsequent time, purge itself of liability for a previous conversion. A number of appellant’s specifications of error are hinged upon the construction of the statute which we find to be erroneous, and it will serve no good purpose to take up the assignments seriatim.
It is argued that error was committed in admitting secondary evidence as to the contents of a letter, without first having made a demand for the production of the original. The argument on this point is confusing. It relates to two exhibits. Exhibit 4 is a duplicate of a letter written by the witness to the defendant, and the other secondary evidence to which objection was made was the witness’s statement as to the contents of a letter received from the defendant in reply to exhibit 4. The witness first accounted for the absence of the original reply, and as he was about to state the contents of the reply as he remembered it, objection was made to the statement as “not the best evidence, no demand being made for the original.” It is obvious that the defendant would not have the original, it being a letter which the witness had received from it. Consequently this objection is without merit and was properly overruled. When exhibit 4 was introduced (the duplicate of
The record discloses that there is ample evidence to go to the jury on the question of the defendant’s conversion of the grain. We have examined the instructions, and find that the jury was fairly instructed upon the issues presented by the pleadings and the evidence. It also appears that the pleadings were sufficient to apprise the defendant of the character of the plaintiff’s demand and to impress upon it the necessity of meeting the issue of conversion. The defendant has had a fair trial and a fair opportunity to present its defense. The judgment being amply supported in the evidence, and no error having been committed in denying the defendant’s motion, the judgment and order appealed from are affirmed.