195 N.W. 654 | N.D. | 1923
This is an action against defendant, a bailee for hire, for grain destroyed by fire. Among other things the complaint alleges that plaintiff delivered to defendant at his warehouse certain grain; that defendant issued to plaintiff certain scale tickets therefor and promised and agreed to issue to plaintiff storage tickets for same and to keep them for plaintiff; that only one storage ticket was issued to plaintiff; that plaintiff is the owner of such certificate and that the others were not delivered to him; that he is the owner and entitled to possession of the grain; that he demanded such grain and offered to pay defendant his charges therefor all of which was refused. Then follows an allegation of the value of such grain. The answer in general alleges that defendant received certain grain for which it issued to plaintiff storage tickets; that on January 26th, 1922, the grain tlum upon deposit in defendant’s elevator was totally destroyed hy fire; that, for the protection of persons having grain stored, defendant carried insurance against fire upon the grain in the elevator; that the various companies writing the insurance have paid the same to defendant and defendant tendered to plaintiff his proper share of the insurance money less monies due defendant from plaintiff and is ready and willing to pay the same to plaintiff. Defendant also set up a cross-complaint- and counterclaim for a certain promissory note made by plaintiff to defendant, for storage due upon tbe storage tickets for grain, and for certain flour purchased by plaintiff. In the prayer for judgment defendant demands relief upon the counterclaims and that the amount thereof ho declared a lien upon all the grain stored with defendant and set off against the amount due plaintiff for insurance upon his grain stored with defendant; that plaintiff have judgment for any balance then found due from defendant to plaintiff.
The facts are: Plaintiff is a farmer residing near Werner. Defendant operated an elevator at Werner. In October, 1920, plaintiff deliv
On January 26th, 1922, defendant’s elevator at Werner was destroyed by fire. The defendant testified that he carried insurance upon the grain stored therein as represented by storage tickets; that he had' no knowledge of any grain outstanding, delivered by plaintiff and as evidenced by.the scale tickets, prior to a demand by the plaintiff concerning , the same made after the fire; that he made adjustment with the insurance companies at a certain price per bushel for the grain in the elevator by considering the cash receipts of grain and of the storage tickets and deducting therefrom the sales and shipments; that the insurance'made and as adjusted did not cover grain that was held upon scale tickets. Otherwise, defendant testified that, in the settlement made with the insurance companies, for Durum wheat destroyed, there
Decision.
"We are of the opinion that the complaint may be treated and con