79 N.W. 338 | N.D. | 1899
This action was brought to recover damages for the alleged conversion of a crop of wheat upon which plaintiff claims a lien by virtue of a chattel mortgage. It is conceded that one Olson gave the mortgage to plaintiff, and that subsequently Olson raised the crop covered by the mortgage, and that he threshed the same, and thereafter placed the grain in certain elevators, and received the usual storage tickets for the same. It is conceded that Olson delivered such tickets to the defendant, but no claim is made that the defendant ever had the grain in his actual possession, or that he in any manner aided the mortgagor in placing- the wheat in the elevator, or in removing it from the premises of the mortgagor. There is a dispute between counsel as to whether the evidence shows that the tickets were turned over to the defendant for safe-keeping only, or whether as plaintiff’s counsel claims they were turned over to enable the defendant to realize" upon a seed lien held by the defendant against the mortgagor. For the purposes of the case we will accept the theory of plaintiff, viz: that defendant held the tickets as collateral to his seed lien, and, consequently, that the defendant, as between himself and Olson, had a special property in the tickets. Before the action was instituted, a demand was made in plaintiff’s behalf upon the defendant for the wheat, or the proceeds of the wheat; but no demand is shown to have been made for the tickets themselves, and, as has been said, the action is brought to recover for the conversion of the wheat. The turning point in the case arises upon the instructions given to the jury. Among other instructions to the same effect, the Court said to the jury: “If you believe by a fair preponderance of the evidence that such storage tickets were delivered to this defendant by Mr. Olson for the purpose of applying the proceeds thereof upon any indebtedness held by him against Mr. Olson, or if you find they were delivered to him for any other purpose than that of safe-keeping, as claimed by the defendant, and you also find from the evidence that while he had such storage tickets in his possession this plaintiff demanded possession of said wheat from the defendant, and he refused such demand, asserting that he had a prior right to said tickets, as against the said plaintiff, then his act in so refusing to deliver possession of such wheat would constitute in law a conversion, and your ver
A point of practice remains for consideration. After the verdict was returned, defendant gave notice of intention to move for a new trial upon a statement of the case thereafter to be settled. Later a statement of the case was settled and allowed, and thereafter, pursuant to a stipulation of counsel, the motion was argued by counsel for both parties, and was denied by the Court. The order denying the motion is, however, general in terms, and omits to state the grounds upon which it was made. Counsel for respondent now claims that the order cannot be reversed if it can be sustained on any grounds, and that it should be sustained, ■ because, as counsel claims, “this statement was not filed in the office of the clerk of court until several days after the motion for a new trial was submitted and determined;” and counsel cites section 5467, Rev. Codes, as supporting his contention, the last sentence of which is as follows : “When settled, the statement must be signed by the judge with his certificate to the effect that the same is allowed, and shall then be filed with the clerk. Counsel also cite certain notes in Deering’s Ann. Code Civ. Proc. Cal. p. 296, and Parrott v. City of Hot Springs, 9 S. D. 202, 68 N. W. Rep. 329. Upon these authorities counsel contends that it is not enough that the statement was actually settled pursuant to the notice of intention, and that counsel voluntarily appeared in the District Court, and argued the motion for the new trial, without objection, and that the Court decided such motion after hearing counsel, but that the further fact that the settled
