92 N.W. 819 | N.D. | 1903
This is an action for damages for the conversion of
The next assignment, and the only other assignment or question raised in the case, specifies error by the district court in granting defendant’s motion for judgment notwithstanding the verdict of the jury. At the close of the plaintiff’s direct testimony, and at the conclusion of taking the testimony in the case, the defendant moved for a directed verdict, and both motions were overruled. The case was then submitted to the jury, with instructions to find a general verdict and to answer special interrogatories. They found a general verdict
We will now consider the evidence with a view of determining whether the district court was warranted in granting the motion under such evidence. The plaintiff worked for one Childs, who farmed the land as a tenant of one Swang, who owned the land. Before the crop was harvested, Mrs. Miller became entitled to claim Cliilds’ interest in the crop under a mortgage from Childs. On October 22d the plaintiff marketed one load of flax at the defendant’s elevator as the agent and at the request of Mrs. Miller. He received the cash for this flax, and turned it all over to Mrs. Miller. Later, and before November 10th, he hauled four more loads of flax as such agent, and left the same, as he claims, at the elevteor, without selling it. The elevator agent claims that these four loads were sold absolutely, but not paid for on delivery; that tickets showing price and weights were delivered to the plaintiff for these four loads. These tickets the plaintiff turned over to Mrs. Miller. During the delivery of the last load — and it was incidentally mentioned before — the plaintiff told the agent that he had a “labor bill that he must have satisfied out of the flax.” The plaintiff also told the agent not to pay Swang or any one else until his claim was satisfied, and the agent promised not to do so. At the time these four loads were delivered at the elevator, nothing was said by the agent or by the plaintiff tending in any way to show that the flax was to be kept separate from other flax, or that it was not to be shipped in the ordinary course of business. When the last load of the flax was delivered at the elevator, Mr. Swang had notified the agent not to pay anybody but himself for this flax, and the plaintiff also notified the agent not to pay any one until his claim for labor lien was settled. The agent said that he would not pay anybody until they had settled their rights to the pay for the flax, as he must protect himself and his company. Subsequently Swang indemnified the company, and he was paid for the four loads, and the plaintiff was refused payment, after demand made for it. Swang was paid on November 15th. The plaintiff filed his lien on November 14th. Under the statute giving farm laborers a right to a lien on crops for labor performed in cultivating such crop, no lien attaches or is acquired until the claim
The judgment is affirmed.