260 P. 709 | Mont. | 1927
This is an action in conversion instituted by the plaintiff to recover from the defendant, a North Dakota corporation, the sum of $761.60, the alleged value of 544 bushels of wheat. Upon issue joined by answer the cause was tried to a jury. Upon the completion of the evidence introduced by the plaintiff, both the plaintiff and the defendant rested, and each of them moved the court for a directed verdict. Thereupon by stipulation of counsel the jury was excused, and the case submitted to the court for decision. The defendant's motion was granted and judgment was accordingly duly entered dismissing the action and assessing the costs incurred to the plaintiff. The plaintiff has appealed from the judgment, and the only question presented for decision is whether the judgment is warranted by the evidence.
It appears that the plaintiff was the owner of a farm located in Richland county, which during the year 1923 was occupied and conducted by one Denton S. Pullen, under a verbal lease. Under the terms of the lease agreement, the plaintiff furnished the tenant with requisite seed wheat, machinery and other equipment, with which to farm the land, with the understanding that the grain grown thereon should be by the tenant *428 hauled, and divided one-third to the tenant and two-thirds to the landlord.
During the season of 1923, while the wheat crop upon the land was growing, the plaintiff visited the premises at least every two weeks. The only lands farmed that year by Mr. Pullen were those so leased by him, and therefrom there was threshed 817 bushels of wheat, and of that amount 807 or 808 bushels were by Pullen hauled to the defendant's elevator and there delivered. The first load was received at the elevator on September 10, 1923, at which time the plaintiff was present. Others present at that time were Robert Brockley, manager of the elevator, Henry Otto, an employee thereof, and Denton Pullen. Thereupon Mr. Pullen addressing the plaintiff in the presence of the persons named, said: "Where do you want your share of the grain hauled and stored?" To which the plaintiff replied: "Haul it here to the Occidental Elevator at Lambert," and then stated, "This wheat is raised on my place, and two-thirds of it is mine, and one-third is Mr. Pullen's." Mr. Brockley graded the wheat No. 1, and said it would all be similarly graded if the rest of it was as good as that first received, and the rest of the grain was "the same grade and quality." The plaintiff testified: "I went back to the elevator in about a week or ten days, at which time I had a conversation with Mr. Brockley concerning the wheat grown on my place." At that conversation Mr. Otto was present. "I recall that the conversation was concerning this wheat grown on my place and hauled in there by Mr. Pullen. I told him I wanted the scale weights and the figures, and he replied that he did not have time to get the figures. I went back to see Mr. Brockley concerning this wheat several times, repeatedly."
On December 22, 1923, the plaintiff addressed a letter to Mr. Brockley, which was received and read by the latter, wherein the plaintiff again demanded the scale weights and payment of the amount due him for his share of the wheat delivered at the elevator by Mr. Pullen. About a week later *429 the plaintiff again called at the elevator, and then had further conversation with Mr. Brockley regarding the wheat grown on plaintiff's farm and hauled to the elevator by Mr. Pullen: "I asked Mr. Brockley how much wheat Mr. Denton Pullen had drawn in off my farm, and I told him I wanted the figures, and demanded payment. He said he had drawn in about 807 or 808 bushels. I told him the wheat was mine, and I demanded payment." Notwithstanding, the plaintiff never received payment for his share of the wheat. He testified, without objection, that the market value of wheat at Lambert on December 29, 1923, was $1.40 per bushel. Henry Otto testified respecting the delivery of the wheat to the elevator by Mr. Pullen, its grade, and corroborated the plaintiff respecting the latter's visits to the elevator and conversations had with Mr. Brockley, the manager. John Edam, who threshed the wheat grown by Pullen on the plaintiff's farm, testified that there was a total of about 817 bushels of wheat threshed by him on that place in the fall of 1923. Timely demand in writing was by the plaintiff made and served on the defendant to produce at the trial "all warehouse receipts, storage tickets and checks given by the defendant to one Denton S. Pullen between the first day of September, 1923, and the thirty-first day of December, 1923, both dates inclusive," and also "all books of account, vouchers, letters, telegrams, writings, and memoranda which in any way deals with or pertains to the sale of wheat to the above-named defendant, by the said Denton S. Pullen, between the first day of September, 1923, and the first day of July, 1924." So far as disclosed by the record, this demand was by the defendant unheeded. It was also shown that at the time of the trial the plaintiff was the owner of his share of the grain and his claim therefor against the elevator.
The law applicable is well settled and understood in this[1] jurisdiction: "Any distinct act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it, is a conversion. `The action of trover being *430
founded on a conjoint right of property and possession, any act of the defendant which negatives or is inconsistent with such right amounts, in law, to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant; it is not necessary that it should be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff's right? If he does, that is in law a conversion, be it for his own or another person's use.'" (Cooley on Torts, 3d ed., p. 859;Tuttle v. Hardenberg,
In our opinion, the evidence fully establishes the plaintiff's[4] case, and the court was in error in entering judgment for the defendant. The defendant was fully advised as to the plaintiff's right and claim to two-thirds of the wheat delivered by Mr. Pullen at the elevator, which information was imparted to it through its manager in charge of the elevator and the proof established clearly a case of conversion of the plaintiff's wheat. There was nothing for the court to do other than by a mathematical calculation to determine the amount of the wheat by the defendant converted and its reasonable market value at the time of the conversion, and ample proof was submitted to permit of such determination. The amount of the plaintiff's wheat converted by the defendant was at least two-thirds of 807 bushels, or 538 bushels, the fair market value *431 of which at the time and place of the conversion was $1.40 per bushel, or a total of $753.20.
Accordingly, the judgment is reversed and the cause remanded to the district court of Richland county, with directions to enter judgment in favor of the plaintiff for the sum of $753.20, together with interest at the legal rate from December 29, 1923, and costs incurred in the action.
Reversed and remanded.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, STARK and MATTHEWS concur.
Rehearing denied November 14, 1927.