129 N.W. 747 | N.D. | 1910
This is an appeal by one of the defendants, the
1. Was there any difference in amount in the grain put into the car at Crystal Springs .by Christianson and the amount of grain taken out thereof on the following Monday at Medina? This was answered in the affirmative.
2. If so, what was the amount of the difference? The answer to this question was 503 bushels gross, and a general verdict was returned in favor of the plaintiff and against all of the defendants, assessing her damages at $835.33, with interest from the 4th of January, 1908, on which verdict judgment was entered. The defendant, the Northern Pacific Railway Company, appeal separately. The other defendants are not in this court.
We seldom have an appeal before us in which the record contains, so confusing a mass of objections, motions, and offers. It contains 79' assignments and 137 specifications of error. The objections of plaintiff to questions, and the motions to strike out answers, in most instances, fail to specify adequately the grounds on which they are based. We infer from the briefs that many of them made by respondent were intended to be directed to the admissibility of testimony or' evidence of justification under the answer of appellant, but they are invariably inadequate to raise that question. We are at a loss to. determine whether the appellant defended the action on the theory that it could justify the delivery of the grain to a third party under
It appears that the plaintiff and one Christianson owned two adjoining quarter sections of land about one and a half miles from Crystal Springs station in Kidder county. The plaintiff resides during the winter in Minneapolis, Minnesota, and the remainder of the year on her land near Crystal Springs. The flax first referred to in the complaint was grown on her land, and that last referred to, on the land belonging to Christianson. Christianson did the work of cultivating her land and harvesting the crop, and on the 4th day of January, 1908, plaintiff’s testimony shows that he completed by her instruction the loading of the flax raised on both places, into a car of the defendant railway company at Crystal Springs, for which he took a bill of lading in the name of the plaintiff, the flax being consigned by her direction to a firm in Duluth. It was not weighed on shipment. Both plaintiff and Christianson testified that the flax grown on the plaintiff’s land belonged to her, and that he was hired to do the work on her place during the season of 1907. She held Christianson’s note for $1,000, bearing date May 24, 1907, and due on or before April 1, 1908, secured by chattel mortgage covering the flax raised on his land during the season of 1907. This mortgage bore even date with the note and contained the usual provisions. Plaintiff and Christianson testified that, by agreement between them, he turned over to her the flax covered by such mortgage, and it was to be sold with the flax raised on her land, and the proceeds of the mortgaged flax retained by her to apply on the indebtedness covered by the mortgage. When the car reached Medina station, 8 miles from Crystal Springs, on Saturday, the 4th of January, it was side tracked, and on Monday, the 6th, all the flax then in the ear was attached by the defendant Kerner, as constable of Stutsman county, on the writ of attachment referred to in the pleadings, at the suit of the firm of Olson, Preszler, & Bollinger, instituted in justice court upon a debt due from Christianson to said firm. All the flax then in the
1.It is contended by the appellant that there is no misconduct shown on its part which constitutes an act of conversion such as is necessary to sustain the action of trover. There was much testimony submitted regarding the amount of flax removed from the car at Medina and the amount shipped, but no direct evidence showing what became of the difference of 503 bushels found by the jury, except that Christianson testified that when the loading was completed at Crystal Springs, he procured locks, and closed and locked the car. floors. Me and others testified that the flax covered the highest grain mark, and reached a point about 2 feet below the roof on ,the car. It was shown that, when the car reached Medina and when the attachment was levied, one of the outer doors was partially open, and •only about 2 feet of flax in the car, but men employed on the train, ¡some of whom rode in the caboose, testified that they had seen none upon the track and none leaking from the car, while it was being ■picked up at Crystal Springs or switched in the yards at Medina, and there was no indication of the car being leaky. An inland common •carrier is an insurer against loss of property consigned to it for carriage, between its receipt at shipping point and arrival at destination, when unaccompanied by the consignor, except through loss occasioned,
1. By an inherent defect, vice, or weakness, or spontaneous action ■ •of the property itself.
2. The act of a public enemy of the United States or of this state.
3. The act of the law, or
4. Any irresistible superhuman cause. Section 5690, Rev. Codes 1905. Duncan v. Great Northern R. Co. 17 N. D. 610, 19 L.R.A. (N.S.) 952, 118 N. W. 826. On proof of the delivery of the property to the carrier in sound condition, and of the failure to redeliver it, a sufficient case is made to sustain a recovery for loss by^ the shipper, and the burden is upon the carrier to exonerate itself from lia
2. Appellant contends that it is not liable in this action for the-flax attached by the officer. In this we think it is mistaken. As-before observed, the appellant did not plead justification; and in view of the importance of this question, and of the fact that only three memhers of this court participate in this decision, and that the objections by respondent to evidence were, in our opinion, inadequate and. too indefinite to raise the question, we shall not pass upon the necessity of pleading justification. If the appellant wrongfully delivered
3. It is contended that the proof fails to show the value of the flax at the date of the conversion, if there was a conversion. This contention rests upon the assumption that.the conversion occurred on The 11th of February, when the demand was made. The proof submitted related to the value of the flax at the date of the delivery to the constable, and this was the date of the conversion.
4. Numerous errors assigned relate to the refusal of the court to allow the defendant to impeach the testimony of the plaintiff’s witness Christianson as to statements concerning the ownership of the flax in question. While not pleaded, one theory of the defense in the "trial court was that all the flax belonged to Christianson, and that the ¡shipping of it in the name of the respondent had been arranged between Christianson and her for the purpose of defrauding Christian-son’s creditors. The witness Christianson was inquired of regarding certain statements as to the ownership of the flax raised on respondent’s land during the year 1907, and by the questions it was intimated that an attempt would be made to show that he had told other parties that .all the flax on both places raised during 1907 belonged to him. He ■denied making such statements, and the court sustained objections to «questions asked the witnesses to whom reference was made in the in
5. It is insisted that proof of default in the terms of the mortgage-entitling plaintiff to possession of the flax was necessary. We do not. concur in this view. If the flax belonged to Christianson, and if respondent held a valid mortgage on it, in the absence of existing liens, held at the time of shipment by any of the interested parties, he could legally surrender the flax to her, and authorize her to sell it and apply the proceeds on the mortgage debt, even though no default had occurred in the terms of the mortgage; but even with existing inferior-liens they would not have been injured, as its value was less than the debt secured by the mortgage to plaintiff. Lovejoy v. Merchants’’ State Bank, 5 N. D. 624, 67 N. W. 956. We are not concerned with-what the rights of the parties might have been had the defendants-been claiming under a subsisting lien at the time of the shipment.
6. It was not error for the trial court to refuse to admit in evidence-the summons, undertaking for attachment, writ of attachment, affidavit for attachment, and complaint. They did not tend to prove-the facts which they were offered to prove. They tended to show that the summons was not issued until two days after the writ of' attachment had been issued, and, for the reasons above stated, the-latter was void. Neither was it error to reject the proffered parol evidence. The questions indicated an attempt to show that a mis
The judgment and the order of the district court denying a new trial are reversed and a new trial granted, as to the appealing defendant, the Northern Pacific Railway Company, only.