155 N.W. 871 | N.D. | 1915
Plaintiffs, who claim to have had a thresher’s lien covering certain grain purchased by defendant elevator company, brought this action against, it to recover damages alleging an unlawful conversion of such grain. Plaintiffs prevailed in the district court, and from the judment, and also from an order denying a new trial, defendant1 appeals. No brief has been filed or appearance made in this court by respondents.
Appellant served and filed numerous specifications of error, challenging various rulings of the trial court in the admission of testimony and in denying its motions for a directed verdict; also in giving certain instructions and in refusing to give others requested by it. The sufficiency'of the'evidence to justify plaintiffs’ recovery is also challenged by numerous specifications. In view of the fact that specifications numbered one, three, and seven are the only ones argued in the brief, the others are deemed abandoned, and will not be further noticed.
Specification one challenges the correctness of the ruling in denying defendant’s objection to the admission of any evidence under the complaint, upon the ground of its alleged failure to state facts sufficient to-constitute a cause of action, the particular points being that it nowhere sufficiently 'alleges facts showing plaintiffs’ special property by virtue of their thresher’s lien upon, nor plaintiffs’ right to,the immediate possession of, such grain. We quote from the brief: “The complaint in paragraph seven, reads.: “That by virtue of the facts hereinbefore
In order to state a cause of action in conversion the complaint must show: (1) That plaintiff is the owner of or has a special interest in the property, and the value of such special interest. (2) That he is entitled to its possession. (3) That the defendant has wrongfully converted it. Parker v. First Nat. Bank, 3 N. D. 87, 54 N. W. 313; Simmons v. McConville, 19 N. D. 787, 125 N. W. 304; Hodge v. Eastern R. Co. 70 Minn. 193, 72 N. W. 1074; Ring v. Neale, 114 Mass. 111, 19 Am. Rep. 316; Glass v. Basin & B. S. Min. Co. 31 Mont. 21, 77 Pac. 302.
The complaint is deficient in both one and two. Had it merely recited that plaintiffs had a special interest in and were entitled to the immediate possession of the property, and had there stopped, it would have been sufficient under some of the authorities; but it recites that the plaintiffs had a special property in it, and were entitled to its immediate possession by virtue of the facts hereinbefore recited. Consequently the sufficiency or insufficiency of the allegations of interest in and right to possession is governed by the sufficiency or insufficiency of the facts recited to show such interest in and right to possession.
The interest claimed by the plaintiffs being merely a thresher’s lien, the owner of the grain, or, if it had been sold, the purchaser, was entitled to possession until the plaintiffs’ right to foreclose their lien had arrived and they had demanded possession for the purpose of foreclosing their lien.
The right to foreclose could not come into being except upon maturity of the indebtedness for the threshing, and possession in the defendants could be made wrongful only by a demand by plaintiffs for possession, made after maturity of the indebtedness. Since the complaint .recites neither the maturity of the indebtedness nor demand for possession,
It is observed that the above argument is predicated upon the assumption that plaintiffs’ cause of action is necessarily in trover or conversion, as was likewise assumed by this court in Parker v. First Nat. Bank, 3 N. D. 87, 54 N. W. 313 (relied on hy appellant), and in numerous later cases involving somewhat analogous facts. Even granting the correctness of such assumption, we are inclined to disagree with counsel’s contention. The complaint in substance alleges: That plaintiffs at all times mentioned were the owners and operators of a threshing rig, and on or about September 1, 1912, were employed by one Titus to do the threshing of the grain grown during that year on certain described premises, at the agreed price of 10 cents per bushel for wheat, and 6 cents per bushel for oats; that pursuant to such contract, and between September 27, 1912, and October 1, 1912, they threshed for said Titus such crops, amounting to 3,1071- bushels of wheat and 2,650 bushels of oats; that no part has been paid; that on October 14, 1912, they filed their verified claim for a threshing lien. Then follows paragraph 7; “That by virtue, of the facts hereinbefore recited, the plaintiffs had a special property interest in, and were entitled to the immediate possession of, all of the personal property hereinbefore described,” and paragraph 8; “That at Antler, on October 14, 1912, defendant, then being-in possession of such gi-ain, unlawfully converted the same to its own use, to plaintiffs’ damage in the sum of $469.75.”
Paragraph 7 may be eliminated entirely, as stating mere legal conclusions, and yet- we think the complaint sufficiently states a cause of action for conversion of the grain covered by plaintiffs’ lien, especially as against attack at the trial. The complaint in Parker v. First Nat. Bank, supra, is not set out in the opinion in that case, but it appears from such opinion that the lien statement was not incorporated in or made a part of the complaint, as was done in the case at bar. Furthermore, the complaint .in such case, which was attacked by demurrer, failed to show that any lien statement containing the necessary’ recitals of fact, as required by the statute, was ever filed, nor did the complaint allege that plaintiff was the owner of the threshing machine. That case does not support appellant’s contention, nor has our attention been called to any authority which does.
Specification number three challenges the correctness of the ruling admitting in evidence exhibit one, such exhibit being a memorandum book kept by plaintiff Miller, purporting to show the amount of grain threshed for Titus as alleged, and made up of figures concededly furnished him by his partner, Webber, who took them sometime prior thereto from a reading of the tally on the separator weighing machine.
Such exhibit was, we think, clearly inadmissible, and the ruling admitting the same constituted prejudicial error. Aside from this exhibit there was no testimony introduced from which a finding as to the amount of the grain threshed could be made. Manifestly, it was necessary for plaintiffs to prove by competent testimony the value of their special property in this grain, for that is the limit of their damage, and that is dependent, of course, upon the amount of grain threshed by them for this man, Titus. It does not appear that the entries in this exhibit were made contemporaneously with the transactions to which they relate, and this it was incumbent upon the plaintiff to show. Chapter 118, Laws of 1907. Moreover, it affirmatively appears that the book, exhibit one, is not a book of original entries, and there is a signal failure to furnish any proof of the accuracy of such entries. Had such proof been supplied by showing that plaintiff Webber furnished to his partner the correct figures as to the number of bushels threshed, and that the latter correctly transcribed such figures into exhibit one, such exhibit might have been competent as a memorandum of the transactions, to be used to refresh the recollection of the plaintiffs. Bqt, as before stated, no such showing was. made.
Specification number seven calls in question the correctness of certain instructions to the jury. There is much force in the contentions of appellant’s counsel under this specification, but we deem it unnecessary to pass thereon at this time, as it does not appear that these questions will necessarily arise upon another trial.
For the foregoing reasons the judgment appealed from is reversed and the cause remanded for a new trial.