191 N.W. 955 | N.D. | 1922
Lead Opinion
Plaintiff brought this action to recover the value of certain wheat, rye, oa.ts, and flax alleged to have been converted by the defendant, and upon which the plaintiff had a chattel mortgage. The material facts are not in dispute. They are as follows: The grain in controversy was grown by one Elayer in 1920. The plaintiff, Sand,
(1) Upon the record before us it stands undisputed that plaintiff’s chattel mortgage constituted a valid first lien upon the grain in controversy. Under the express stipulations of the mortgage, the mortgagee was authorized, in case default was made in the payment of the debt secured by the mortgage, to take, remove, and sell the property described in the mortgage in the manner provided by statute. The mortgage further provided that it might “be foreclosed by a sale of such crop, when harvested, in any usual market thereof at any time in the usual manner, at the market price therefor in any such market without notice of foreclosure.” At the time the grain was delivered to the defendant elevator company by the mortgagor, Elayer, a default existed and the plaintiff, Sand, was entitled to possession of the grain covered by the mortgage, upon making a demand therefor. Of course, the chattel mortgage was only a lien and defendant could receive the grain for storage or even purchase it, but the grain would be received and held subject to the lien of plaintiff’s mortgage. Sanford v. Duluth & D. Elevator Co. 2 N. D. 6, 48 N. W. 434; Catlett v. Stokes, 21 S. D. 108, 110 N. W. 84; Citizens Nat. Bank v. Osborne-McMillan Elevator Co. 21 N. D. 335, 339, 131 N. W. 266. In this case it is stipulated that the agent of the plaintiff on January 29, 1921, demanded possession of the grain, and
In our opinion the defendant in this case has not brought himself within the statute. The grain in controversy was delivered to the defendant prior to October 4th, 1920. When it received this grain it had constructive notice that it was covered by plaintiff’s mortgage and on October 4th, 1920, it received actual notice of this fact. On Ianuary 29, 1921, the plaintiff made formal demand upon the defendant for the possession of the grain. Defendant refused such demand. As already stated, such demand and refusal established prima, facie a conversion of the grain on that date. Defendant took no action under § 1594, supra, until after this action had been brought, and it had been made garnishee in an action brought by .one Anderson. Then in July 1921, it .sought to invoke § 1594 by answer made in the garnishment action. In our opinion the findings of the trial court to the effect that the defendant converted the grain is in accord with the facts and evidence as stipulated upon the trial in this action.
Concurrence Opinion
(specially concurring). I concur in the opinion of the court written by Judge Christianson. To me it seems obvious that the statute under consideration was never intended to apply, and does not by its terms apply, to a situation in which the plaintiff claims that the defendant, a bailee, is liable to him on account of a conversion of the subject of the bailment. The statute was construed by this court in McLaughlin v. Dodge Elevator Co. 43 N. D. 231, 174 N. W. 871, as not applicable to the instance of a wrongdoer who would seek to use it for the purpose of reducing his own liability for a wrongful act, such as a conversion. It was there said that:
“The statute is merely intended to relieve a person who is in a position analogous to that of a stakeholder. He is relieved by delivering-up the stakes.”
The similar statute in Minnesota was construed in the same way by the Minnesota court in Austin v. March, 86 Minn. 232, 235, 90 N. W. 384, where the court said:
“The design and intention of the legislature was to give in simplified form the relief granted by courts of equity at common law by the proceeding known as an interpleader, and the rules and principles of law*510 applicable to that proceeding must govern and control proceedings under tbe statute.
“The authorities are uniform that to entitle a party to maintain a bill of interpleader it must appear that he stands in a position of indifference between the rival claimants, making no claim to the property himself.”
Obviously, one who is guilty of conversion cannot stand in the position of a stakeholder for he is charged with having asserted a dominion over the property inconsistent with the plaintiff's right, and it will be incumbent upon the plaintiff to establish that fact in order to recover in conversion. In other words, the plaintiff will recover only if he is able to prove that the defendant assumed a different attitude towards the property than that of a stakeholder.
No principle is better settled than that a wrongdoer may not invoke the remedy of interpleader. 15 N. 0. L. pages 226 and 227, states the general doctrine as follows:
“It is of the essence of an interpleader suit that the plaintiff should be entirely indifferent between the conflicting claims, asserting no interest in himself in the fund in dispute. An attitude of perfect disinterestedness, excluding even an indirect interest, on the part of the plaintiff is indispensable to the maintenance of the bill, and his position must be one of ‘’continuous impartiality,’ save that the thing in his possession be awarded to the right party. ... So a bill of inter-pleader will not lie if the plaintiff has incurred some personal obligation to either of the defendants, independent of the title or the right to possession, because such defendant would in that event have a claim against him which could not be settled in litigation with the other defendant. A plaintiff cannot compel others to interplead when the relative rights of the latter depend upon the question of fact whether he has made himself legally liable to pay one of them, even though the plaintiff will not be pecuniarily affected by the decision of that question. lie must be supposed to know whether he has obligated himself to one of the other parties and cannot cast upon them the burden of settling that question.
“One seeking the advantages of a bill of interpleader must show not only that he stands indifferent between the. claimants and that he is without interest in the controversy to be waged between them, but that*511 be is in tbe position of a more innocent stakeholder or depositary, and that no act on his‘part has caused the embarrassment of conflicting claims and the peril of double vexation. When he stands to either of the parties in the relation of a wrongdoer he cannot have relief by bill of interpleader. Thus, where a warehouseman, as agent, sells the property of his bailor stored with him to a purchaser who leaves the property in the warehouse, he is not entitled to file a bill of interpleader to prevent suits brought against him by the original bailor who denies the agency, and by the purchaser, both of whom claim title to the property. So, if a sheriff has seized goods on execution that were not subject to levy, he is as to the true owner a wrongdoer and cannot require him to inter-plead with the creditor to determine the validity of the levy.” See also Tyus v. Rust, 37 Ga. 574, 95 Am. Dec. 365.
In the dissenting opinion herein, it is said that the statute may be invoked by one who has converted property. The statement is also made that it is apparent that the defendant is in the position of a mere stakeholder. This, it seems to me, involves a fundamental inconsistency. How can it be said that one is a mere stakeholder, or one claiming no right to the property, when the very basis of the liability for eonveraion, which is sought to be enforced against him, is that he has asserted a dominion inconsistent with the plaintiff’s right, interest or title?
I am of the opinion that the statute evidences no intention whatsoever to change the fundamental principles applicable to interpleader, but that it merely intends to simplify the application of those principles by allowing a stakeholder to exonerate himself, either in advance of litigation begun, or after litigation has started, concerning which he is indifferent and uninterested as to the outcome, — adverse claims being asserted by others to property of which he is stakeholder. I am unable to see how he can occupy this position when an action is begun against him which is predicated on his own wrongful act.
Concerning the suggestion that the statute was intended to operate so as to shift the burden of market risks in shuttle-cock fashion between the injured party and the wrongdoer, and to balance differences on the basis of market changes during periods anterior and subsequent to the service of notice under the statute, I am impressed only by its novelty. It has never 'been considered a hardship on one who has converted property to hold him for the value of the interest converted. This is
I concur in the majority opinion.
Dissenting Opinion
(dissenting). Elayer made to plaintiff a note for $562 dated October 14th, 1919, and due October 1st, 1920. To secure the same, Elayer executed a chattel mortgage upon the crops to be grown in 1920 on a half section of land owned by him. This mortgage was recorded in October, 1919. Elaycr’s share of the crops in 1920 was delivered to defendant at its elevator in Eero, North Dakota. The same consisted of wheat, oats, rye, and flax. On October 4th, 1920, defendant issued seven storage tickets in the name of Elayer to this grain. On this date plaintiff, by letter, notified defendant that he held a chattel mortgage upon the owner’s share of the crops grown during 1920 on the premises affected. On January 19th, 1921, plaintiff, through the sheriff as his agent, issued a notice of foreclosure concerning his chattel mortgage upon the crops. Notice was therein given that plaintiff would sell such crops at defendant’s elevator at Eero at 2 p. m. on January_29th, 1921. The affidavit for publication of this notice recites such notice was published once, viz.: January 20th, 1920. On January 29th, 1921, plaintiff, through his agent, offered and attempted to sell such amount of the grain covered by the mortgage and deposited with defendant as was necessary to satisfy plaintiff’s claims and costs. Upon such foreclosure, defendant failed, refused, and neglected to deliver to plaintiff the grain covered by the mortgage, or the proceeds thereof, or any part thereof, and on such day the same was demanded by plaintiff’s agent, the sheriff. Prior to such attempted foreclosure, no demand had been made for the possession of the grain by the mortgagee. On May 13th, 1921, one Anderson instituted an action against Elayer and a garnishment proceeding against defendant herein as garnishee in such action. Plaintiff herein was interpleaded as a defendant in such action. On June 18th, 1921, plaintiff instituted this action for conversion against defendant. Shortly after the grain in controversy
On July 26th, 1021, defendant herein served upon plaintiff its answer wherein it alleges that since the delivery of grain to its elevator and while the storage tickets were outstanding in Elayer’s name, diverse and different persons have made claim to the grain, to some interests therein, or to the proceeds thereof, namely, the plaintiff, one Archie Anderson, Elayer, and Obert Blessum; that defendant, as bailee, has no interests other than to protect itself against loss of damage and see to it, as far as possible, that the person entitled to receive such grain or its proceeds obtain the same; that this defendant has been and is wholly unable to determine who is entitled to such grain or to any part thereof, or to the proceeds thereof; that because of such adverse claims and because of defendant’s inability to determine as to whom said grain or proceeds should be delivered, it caused to be deposited the duplicate storage tickets representing such grain in the office of the clerk of the district court; that defendant makes no personal claim of any kind in the action other than to protect itself against loss or damage and to have determined the party or parties who are rightfully entitled to receive such grain or the proceeds thereof.
. Pursuant to such allegations all the facts above stated, as well as the facts contained in such allegations of the answer, were stipulated at the trial. It was stipulated that notice of such deposit was duly given and served upon all of the known claimants as by law provided and that the grain and storage tickets representing same were still on file in the trial court. On July 29th, 1921, the defendant, as garnishee, in the action of Anderson v. Elayer made affidavit, reciting principally the facts above stated concerning the receipt and storage of the grain and the claims of adverse claimants and the deposits in court made by the defendant.
The trial court found, in addition to general findings upon the stipulated facts above stated, that plaintiff in the Anderson action in which
Opinion.
It is apparent that the attempted foreclosure proceedings were invalid ; the date of publication proved was January 20th, 1920; evidently intended for January 20th, 1921. But such proof afforded no authority for a valid foreclosure sale on January 29th, 1921. Comp. Laws, 1913, § 8125. Plaintiff elected to proceed by notice, and not without notice, under § 8127, Comp. Laws, 1913. This is technical but plaintiff seeks the enforcement of technical rights to make defendant pay his demand with costs of foreclosure and other expenses. Accordingly, the findings and conclusions of the trial court are at least erroneous in holding the foreclosure valid for any purposes herein and in permitting plaintiff to
Tbe majority opinion of this court is based upon three general propositions: (1) That proof of tbe demand and refusal on January 29th, 1921, established a conversion for tbe reason that no evidence was offered to rebut or explain the refusal; (2) That the proper measure of damages was the market price of the grain on January 29th, 1921, and that the-judgment is based upon such market value so established; (3) That no proper deposit was made because defendant has not brought itself within the statute, § 7594, Comp. Laws, 1913.
(1) It is true the record is abbreviated and the facts in some respects neither definite nor clear; practically all of the facts are established by stipulation but with such stipulation were introduced certain exhibits. One of such exhibits, together with the stipulation, contains the evidence that, shortly after the grain was received by defendant, adverse claims were made to the grain. Obert Blessum claimed the thresholds lien. Plaintiff claimed a lien; Anderson made a claim of right. What happened between the time these claims were made and the time of the demand on January 29th, 1921, the record fails to disclose. What reasons actuated the defendant in not complying with the demand on January 29th, 1921, also do not appear. However, when plaintiff made the demand upon defendant on January 29th, 1921, for purposes of foreclosure, he know that defendant was not a wrongdoer in receiving the wheat and issuing a storage ticket therefor. Sanford v. Duluth & D. Elevator Co. 2 N. D. 6, 48 N. W. 434. He knew further that defendant was merely holding such grain as a bailee for the proper persons entitled thereto and that it claimed no rights of ownership therein; that the reception of the grain constituted a bailment and not a sale. § 3114; State ex rel. Ertelt v. Daniels, 35 N. D. 5, 9, 159 N. W. 17. I am not prepared to hold, directly or inferentially, that the defendant, as such bailee, was then bound on the moment of the demand to deliver-the grain or its value, or be held liable for its conversion, without any
(2) The proper measure of damages to which plaintiff was entitled ■was not the value of the grain on January 29th, 1921. The court did not award plaintiff judgment for such market value. The market value of the grain on January 29th, 1921, as proved, was slightly over $900. The court awarded to plaintiff the amount of his demand, with interest, duo on January 29th, 1921, namely, $034.55, plus foreclosure costs, $44.50; total $079.05. The statute permits a recovery in damages for conversion for the value of the property at the time of the conversion, with interest; or the highest market value of the property at the time between conversion and the verdict, without interest, when the action has been prosecuted with reasonable diligence, and a fair compensation for the time and money expended in pursuit of the property. Comp. Laws 1913, § 7108. But, this rule for damages applicable in conversion docs not mean that one may unjustly enrich himself at the expense of another. Tt does not mean that one holding a chattel mortgage for $100 upon grain held by a bailee; both at the time of conversion '$1,000 is entitled to recover such $1,000 and thereby enrich himself to the extent of $900.
Plaintiff could recover only his special interest in the property converted. Only the extent of his actual loss. IIis compensation must be commensurate with the actual injury suffered. Lovejoy v. Merchants State Bank, 5 N. D. 623, 626, 67 N. W. 956; Hanson v. Skogman, 14 N. D. 445, 449, 105 N. W. 90; State Bank v. Hurley Farmers Elevator Co. 33 N. D. 272, 281, 156 N. W. 921. Plaintiff was not entitled, in any event, to recover an amount exceeding his demand. His demand was the amount of the note with interest up to the date of the judgment, together with whatever fair compensation he might have established in the evidence for the lime and money properly expended in pursuit of the property. In this regard the trial court erred to the extent of fixing the amount of plaintiff’s demand as of the date of January 29th, 1921, with legal rate of interest thereafter, instead of the total amount of plaintiff’s demand up to the time of judgment in accordance with the terms of the note.
(3) The trial court held that no proper deposit was made. The majority opinion holds that defendant, in making the deposit, did not
In McLaughlin v. Dodge Elevator Co. 43 N. D. 231, 235, 174 N. W. 871, the court held that the property or a duplicate storage ticket rep
The statute has been set forth in full in the majority opinion. The pertinent provisions of the statute provide that whenever a bailee, in possession of any personal property, has notice or knowledge of any right or claim of right, of any person in or to any part of such property adverse to the right of any other claimant therefor, he may deliver such property when an action in any form has been commenced for an account of or growing out of the same, to the clerk of the court in which any such action, having reference to such said property or the value thereof, may be pending or out of which any garnishment or other process may issue with reference thereto, and upon giving the notice described in the statute he is thereupon relieved from further liability to any person on account of such property.
I am of the opinion that the record fully discloses, pursuant to the stipulation, that the defendant, as bailee, did have notice and knowledge of rights and claims of rights of persons to such property adverse to the rights of other claimants therefor; that this action was an action commenced on account of such property, namely, the grain; that the defendant, for the purposes of this action, and pursuant to the stipulation, did deliver such property to the clerk of the trial court. In other words, that the terms of the statute were made available to defendant and it came within the terms thereof, pursuant to the facts stipulated.
In McKenzie v. Hopkins, 29 N. D. 180, 150 N. W. 881, an action was brought to determine the ownership of the proceeds of a certain crop. The rights of an owner, a tenant, and chattel mortgagees were involved. Certain crops were shipped to an elevator company. The elevator company sold the same and retained possession of the proceeds.
In Austin v. March, 86 Minn. 232, 90 N. W. 384, a statute, chap. 329 Minn. Laws, 1895, almost identical in language with quoted provisions of § 7594, Comp. Laws, 1913, was considered. In that case the defendants delivered wheat and flax into Barry’s elevator for which storage tickets were issued. Barry gave to defendants some promissory notes as collateral security for payment of the storage tickets. Barry shipped the wheat to a commission firm in Minneapolis. Defendants
“This statute was intended to meet cases where a person occupies the position of bailee or custodian, unable to determine to whom the property or money held by him rightfully belongs, and to which he himself makes no claim of right or title. To- protect such a person from a possible double liability, the statute provides that he may deposit the money or property in court, and thereupon be relieved from further liability to any of the claimants. It was not intended to apply to persons who make personal claim to the -property in their possession, but only to those who are disinterested bailees or custodians, having no claim of their own, and not disputing the rights of the various claimants. The design and intention of the legislature was to give in simplified form the relief granted by courts of equity at common law by the proceeding known as an interpleader, and the rules and principles of law applicable to that proceeding must govern and control proceedings under the statute.”
It is apparent that defendant is in the position of a mere stakeholder. ‘It has claimed no rights in the grain. It has asserted no defense against the validity of plaintiff’s lien. It has surrendered and deposited in court the specific property and the evidences thereof. It has given notice to all parties interested. It stands in a position of indifference concerning the disposition of the property. It has done all that a stakeholder could do in order to relieve itself of further liability; for it