Thorp v. Fleming

96 P. 470 | Kan. | 1908

The opinion of the court was delivered by

Benson, J.:

The defendant claims that the findings are not supported by the evidence. There was abundant evidence that the wheat was ripe and falling down when defendant commenced to cut it. The defendant testified that he took possession and cut it for the bank as well as to secure his own interest. The justice before whom the case was first tried testified that Thorpe swore that he took it under his lien, and the plaintiff’s attorney testified that the defendant said he took it under the lease, but he also testified that he knew that the defendant had set up both claims in his answer, which was not withdrawn. In the light of this evidence, and the finding that the president of the bank cautioned the defendant to protect its interest in the wheat, it is difficult to discover any warrant for finding that the defendant intended wrongfully to convert the wheat to his own use. It is also difficult to see how the finding that he did not harvest the wheat for the bank as well as for himself is supported. His statement that the quantity sold was insufficient to cover the expenses appeared to be- true, and no further disposition of the wheat was made until after the action was brought. The plaintiff might have proceeded to market the remainder of the wheat and take out his interest, and this we must presume was his purpose when he exacted from the defendant the promise to let the rest of it alone; or he might have allowed the defendant to complete the marketing, and then demanded an accounting; but, instead of doing either, he sued for conversion^.

The findings challenge a careful scrutiny of the instructions to ascertain if there was any error that would lead the . jury to find as they did. The, court fairly instructed the jury, upon the right of the defendant to harvest the wheat, giving in substance the following instruction requested .by the defendant; excepting, however, the words in italics:

. “If you find from the evidence that..at .the time he entered and, had the. wheat, cut he was acting in the interest of, and for and! on behalf of, the. bank, as. well as for himself,' and that the hank deemed itself insecure, then his actions were rightful under the chattel mortgage, and the plaintiff can not recover in this action and your' verdict should be for the defendant. In determining this last question it is wholly immaterial tvhethoT the bank had good cause to deem itself insecure or not.”

The proposition so refused was a correct statement of the law. (Werner v. Bergman, 28 Kan. 60, 42 Am. Rep. 152.) The mortgage contained the following clause:

“In case . . . the party of the second part shall deem itself insecure, then and thenceforth it shall be lawful for the said party of the second part, or its authorized agent, to enter upon the premises of the said party of the first part, or any other place or places wherein the said goods and chattels aforesaid may be, to remove- and dispose of the same, and all the equity of redemption .of the said party of the first part, at public auction or private sale.”

■Under this clause the defendant had the right to-take possession if the proper officers deemed the bank insecure, and whether they had just cause for such belief was not an issue to be tried. • - ■

-In the cross-examination of the defendant he- was. asked whether he had proceeded to advertise the wheat for sale by written or-printed handbills. -An objection to this question, was overruled, and the defendant answered that he -had not. This was an erroneous 'ruling. No demand had been made for such proceedings (Gen-. Stat. 1901, §4253), and the mortgagor had consented to a private sale by provision in the mortgage. .The-finding of the jury that the defendant did not act in good faith in harvesting the wheat may have been, and. probably was, influenced by this admission. The ruling of the court would naturally lead the jury to suppose that the failure to advertise was evidence of a -wrongful purpose. In this erroneous.rulihg,.in connection -with the failure to 'give- the instruction referred to, may perhaps be found the .reason why the jury'found, apparently against the evidence, that, the defendant. in. harvesting this- wheat intended thereby to convert it. to his own use, in violation of the plaintiff’s rights, and not for the protection of the bank or to protect his. own interests as landlord. Errors riot prejudicial to the rights of the defendant should be disregarded', but the reasonable inference from'the'findi(ngs,'-in view of. the fact that there was little if any evidence to support-them, is that the jury were misled thereby.

The judgment is reversed, with directions to grant a new trial.