139 N.W. 697 | N.D. | 1913
Plaintiff seeks to recover damages for the alleged conversion of certain promissory notes of the face value of $4,458, and alleged to he worth that sum. The complaint is in the usual form, alleging ownership and right of possession in plaintiff of the notes in question on April 14, 1909, and that on such date the defendant, having such notes in his possession, unlawfully converted and disposed of the same to his own use, to plaintiff’s damage in the sum aforesaid.
The answer puts in issue the allegation as to plaintiff’s ownership and right to the possession of the notes on April 14, 1909, or at any subsequent date, and alleges ownership and possession of such notes in himself at all times subsequent to April 10, 1909. He also denies both the conversion and the value of the notes as alleged in the complaint. The case was tried to a jury, and a verdict returned in plaintiff’s favor for the sum of $4,149.10. Thereafter defendant moved for judgment notwithstanding the verdict, or in the alternative for a new trial, which motion was denied, and he appeals both from the judgment and from the order denying such motion.
A brief statement of the facts out of which the litigation arose, and which statement we deem necessary to a proper understanding of the propositions of law involved, is as follows: Plaintiff, a farmer residing near Walum in this state, sold his farming property preparatory to moving to Hew Mexico, and on and prior to April 10, 1909, the notes in controversy were left in defendant’s bank for safekeeping, the defendant being a banker at Walum. The latter was also local agent for the Mutual Life Insurance Company of Hew York, and he and the plaintiff had various negotiations regarding an exchange of such notes for certain life insurance on plaintiff’s life. These negotiations culminated in an agreement for an exchange of some of such notes for life insurance, and pursuant thereto plaintiff made a written application through the defendant for a $5,100 paid-up policy, in consideration for which he was to transfer to defendant a portion of the notes in controversy. Plaintiff desired to exchange all three of the notes for insurance, but defendant objected to one of the notes upon the alleged ground that it was of little or no value, but finally the parties effected a new agreement to supersede the first, whereby all the notes were to be transferred to defendant for another and larger policy, and a new application was signed by plaintiff in lieu of the former one. There
Appellant assigns a large number of errors, but they are grouped and discussed in his brief under six general propositions as follows:
“1. Error of the court in permitting plaintiff to testify orally as to terms of a written contract of insurance, no issue having been made*361 as to whether said written contract was fairly or mistakenly entered into. ■ ■
“2. The testimony offered by the plaintiff shows only a breach of contract, and not conversion, and plaintiff cannot recover for breach of contract in a conversion action.
“3. An alleged rescission of the contract in question was ineffective^ because of failure of plaintiff to restore, or offer to restore, benefits received by him.
“4. There is no proof of the value of the property alleged to have been converted at the date of the alleged conversion.
“5. Error of the court in admitting in evidence several letters of plaintiff to this defendant, containing a statement of his claims in the controversy, and being merely self-serving declarations.
“6. Error of the court in permitting testimony in favor of the plaintiff in the nature of understandings and conclusions, and denying to the defendant testimony of conversations respecting the same matters.”
1. ITnder his first proposition, appellant’s contention is that plaintiff should not have been permitted to introduce parol testimony to show that the agreement was other than as. disclosed in the written application signed by him. In other words, that, if plaintiff desired to prove that the written contract, as embraced in the application, does not embody the actual agreement between the parties, he must allege in the complaint facts showing either fraud or mistake or some ground for rescission. He invokes the familiar rule that, before being permitted to give evidence of prior oral negotiations, he must lay a foundation in the pleadings for proof of facts disposing of the written instrument. We think appellant is in error in such contention. Under his allegation of ownership of the notes and the conversion thereof by the defendant, we think he had the right to prove any facts tending to show the truth of such allegations. In other words, if conversion will lie under the facts as claimed by plaintiff, then he should be permitted to prove such facts under the complaint as framed. He cannot be required to plead mere evidentiary matter. If appellant’s contention that conversion cannot be proved because of a lack of the necessary allegations in the complaint showing a right to rescind, then, upon like reasoning, conversion could not be proved under such complaint, even if the notes were obtained by fraud. We think this position unsound.
We are therefore agreed that the trial court did not err in admitting parol evidence to show what the contract between the parties was. We are also agreed that plaintiff has not mistaken his remedy, provided he is able to establish that the contract was as contended for by him, and that such contract was rescinded.
In the light of the above observations, the rights of these parties are, we think, quite plain. At the most, defendant acquired merely a conditional title to the notes, dependent upon his furnishing to plaintiff" the policy agreed upon. If a one payment policy was agreed upon, as. plaintiff contends, then, upon defendant’s failure or refusal to procure and deliver such a policy, plaintiff had the undoubted right to rescind the deal and sue for the notes or their value, and defendant’s refusal to recognize plaintiff’s claim thereto would constitute a conversion thereof.
We fail to appreciate the force of appellant’s contention that a rescission could not have taken place “because of failure of plaintiff to restore, or offer to restore, benefits received by him.” He received no benefits under the contract, and he promptly restored to defendant the policy which was transmitted to him. Such policy was at no time effective, and was immediately returned. Under plaintiff’s version of the contract, the so-called De Lap paper constituted no part of the consideration. We think this sufficiently answers the first three propositions advanced by appellant’s counsel.
It is next contended that there is no proof of the value of the notes alleged to have been converted. There is no merit in this point. While the evidence on this question is not as specific as it might have been, we are convinced that when considered in the light of the presumption that the notes were worth their face value, it is sufficient. The decisions of this court cited by appellant, involving the sufficiency of proof as to the value of grain, are not in point. There is no« analogy between the case at bar and cases for the conversion of commodities having a fluctuating value, such as grain. The court will take judicial notice that the market value of grain fluctuates almost daily and sometimes hourly. Hence, the rule regarding proof of the value
This brings us to a consideration of the correctness of certain rulings of the district court on the admission of testimony in the form of letters written pro and con between the parties subsequent to entering into the contract. In considering the alleged errors under this branch ■of the case, we must not lose sight of the fact that the crucial issue of fact was, Which party is correct as to the terms of the contract which was entered into ? The receipt of such letters, if error at all, was of the most prejudicial character, for the jury was permitted to take them to the jury room for perusal by the members thereof during their deliberations. After mature deliberation, we are constrained to hold that the receipt of most of such letters constituted palpable error, necessitating a new trial. In giving our reasons for this holding, we deem it unnecessary to go into details, and shall content ourselves by a general statement of our views. Plaintiff was personally in court and testified to the material facts sought to he proved by these letters. The fact that he declined to accept the $85,000 policy and immediately returned same to defendant, and that defendant received the same, as well as the fact that the notes and assignments of mortgages were forwarded by defendant to plaintiff for indorsement and transfer, and that the same were returned by mail to defendant after being indorsed and transferred, were all testified to by plaintiff, and are wholly uncon-troverted. Plaintiff's letter, Exhibit 6, could therefore serve no legitimate purpose, and should have been excluded, as it contains many self-serving declarations of a very prejudicial character regarding a past transaction, and could only serve to mislead and poison the minds of the jurors to defendant’s detriment. The same may be said of Exhibit 1, being another letter written by plaintiff to defendant, with the exception that this letter was, no doubt, admissible for the sole purpose of proving a rescission of the contract by plaintiff and the imparting of notice thereof to defendant. It should be thus restricted. Exhibits 8 and 9 are letters written by plaintiff to defendant in May of said year, and contain nothing but self-serving declarations as to plaintiff’s version of the contract. They are clearly incompetent and highly prejudical to defendant, and should have been excluded. Hum-
If authorities are necessary in support of the rule that the above-mentioned letters written by plaintiff are inadmissible, see Learned v. Tillotson, 91 N. Y. 1, 49 Am. Rep. 508; Canadian Bank v. Coumbe, 47 Mich. 358, 11 N. W. 196; Biggs v. Stueler, 93 Md. 100, 48 Atl. 727 ; Fallon v. Rapid City, 17 S. D. 570, 97 N. W. 1009; State, Hand, Prosecutor, v. Howell, 61 N. J. L. 142, 38 Atl. 748; Bank of British N. A. v. Delafield, 126 N. Y. 410, 27 N. E. 797; Jones, Ev. pp. 336, 374, 375; Hammond v. Beeson, 112 Mo. 190, 20 S. W. 474; Fisher v. Meek, 38 Ill. 93; Fearing v. Kimball, 4 Allen, 125, 81 Am. Dec. 690.
The errors above pointed out necessitate a new trial, and, in view of this disposition of the appeal, we deem it necessary, for the guidance of the trial court, to pass on but one other ruling complained of by appellant. The vital and controlling issue between these parties was whether the contract in fact called for a one premium policy or a straight life annual premium policy.. The plaintiff sought to show that the contract was for a one premium policy, and he was permitted, over defendant’s objection, to corroborate his version of the contract by the testimony of his son, who was permitted to testify to his understanding of the deal from the conversation of the parties, instead of being required to detail such conversation. We think this ruling was not only clearly erroneous, but manifestly very prejudicial in view of the record presented on this appeal.
The judgment and order appealed from are reversed and the cause is remanded for a new trial in accordance with the views above expressed.