190 N.W. 815 | N.D. | 1922
Lead Opinion
This is an appeal from the judgment of the district court of Ward county, where in an action for conversion, plaintiff recovered a judgment which, including costs, amounted to $842.35. The action is one in conversion brought to recover the value of certain buildings owned by plaintiffs, which they claim have been converted by defendant. In due time after the entry of the judgment, plaintiffs made a motion for judgment notwithstanding the verdict or for a new trial, which was denied.
The material facts necessary to be stated, follow: Prior to August 1918, one Dr. Yoeman owned the SW|- of section 18, township 160, range 83 and Ole Nesvold owned the SE^ of the same section. For several years prior to that year, Nesvold had rented the Yoeman quarter and lived upon it. Under an arrangement with Yoeman he placed upon the rented land from Yoeman, three certain buildings, a
The defendant specifies numerous errors, all of which have been considered. The decision of two of them will dispose of this appeal. He contends under the first assignment that the facts pleaded and proved by plaintiffs do not establish conversion of the buildings by the defendant, nor give a right of action against him on that ground. We deem it unnecessary to go into a lengthy discussion of the reasoning of defendant with reference to the essential elements of conversion, or to discuss at length the authority cited by him. It is unnecessary to consider all the refinements that may bear upon or enter into the subject of conversion. The case is simple. It is certain that plaintiff was the owner and had the right to possession of the buildings, unless, as defendant maintains, that plaintiff sold them to him. In effect it is the claim of defendant that the consideration expressed in the written agreement covering the land represented the agreed purchase price for both the land and these buildings; this claim will receive further consideration later in the opinion, but for the present it will be assumed as plaintiff contends, that the buildings were not included with the sale of the land. If the plaintiff lost the buildings, by whose act did he lose them ? There can be but one answer to this question, which is,
Defendant’s second assignment of error rests upon the claim that certain evidence offered on behalf of defendant was excluded and stricken out. By this evidence, defendant attempted to show that the three buildings which at the time defendant purchased plaintiff’s land, were on the Yoeman quarter, were included in the deal, that is, in the purchase of plaintiff’s land. With reference to this, the defendant gave the following testimony: “I told Mr. Nesvold that I had bought the Yoeman’s place and that I would like to figure with him buying his quarter. We talked over about — we talked the matter over about the buildings and he said that he had a couple of buildings on the Yoe-man’s farm, which I knew. Dr. Yoeman had fold me. So I agreed with him that I would buy his quarter and it "was understood perfectly that the buildings on the Yoeman’s place should go in with the deal.” He said, “If I sell my farm I have no further use for the buildings, and he said that if we come to a close, or the close of a deal, that I might sell them off; that he had no more use for it. That he expected to move out of the country; away down to Willow city.”
The defendant further testified that Nesvold said that if he did not sell, he would have to buy a house, and that he didn’t have the money to buy that with. Defendant testified to the effect that this conversation was had after defendant had purchased the Yoeman land and after he had informed Nesvold to that effect. All of such evidence on objection by plaintiff was excluded; the court did not permit it to be considered by the jury and instructed the jury to that effect. In this, we think, the court erred. It should have received such testimony. It
We think it is clear there must be a new trial. The judgment appealed from is reversed and the case is remanded for further proceedings not inconsistent with this opinion. Appellant is entitled to his costs and disbursements on appeal.
Concurrence Opinion
(specially concurring). I concur in the reversal. Plaintiff’s cause of action sounds in conversion. It alleges that defendant took possession of the buildings. The evidence is sufficient to support findings to that effect. Plaintiff’s right thereto is based upon an agreement whereby the same remained at all times personal property. It was competent for defendant, under the general denial, to establish lawful possession of the buildings; that, in fact, he had purchased them from plaintiff and paid a consideration therefor. The parol evidence offered tended to show that all of the transactions between the parties, so far as they concerned the buildings in controversy, were not reduced to writing and embodied within the terms of the written contract and the deed. The contract and deed concerned realty. The buildings were personalty. They were situated upon land other than that conveyed in the contract and deed. Under the circumstances, a collateral agreement, concerning such buildings, and as a part of the whole transaction, might have been made and, for plausible reasons, not included within the written evidence which concerned realty. Accordingly, the testimony offered served to show that the written contract was not intended to cover the whole transaction;
