174 N.W. 883 | N.D. | 1919
Lead Opinion
This is mainly a suit for the conversion of grain which has not been converted. The appeal is from a judgment on a directed verdict for defendant. As tenant of plaintiff, defendant farmed her land on the usual cropping conditions. He caused the grain to be threshed, hauled to the grain elevator, and took storage tickets, thus:
September 11, 1918. Ticket to Walter Myers, 281 Bu. 2 rye.
October 21, 1918. Ticket to Myers & Wright, 70 Bu. 1A durum.
October 19, 1918. Ticket to Myers & Wright, 72 Bu. 1 durum.
October 19, 1918. Ticket to Myers & Wright, 141 Bu. 1 durum.
In directing the verdict the court justly said: Mrs. Wright is entitled to her grain, and defendant is willing to give it to her, and he is entitled to some offsets against it, but under the law plaintiff is not entitled to recover at all for conversion. The bulk of- the grain in dispute was properly hauled to the grain elevators, and storage tickets in evidence as a part of the record were taken for the grain. It has not been sold because the plaintiff by her attorney, Youngblood, directed the elevator company to hold the grain, and not to sell it. Thus the plaintiff does in effect hold the grain, while she sues for the conversion of the same. She may not thus play fast and loose. While holding the grain she may not sue for its conversion.
They are other minor disputes concerning the proper disbursement of moneys which she sent to defendant to buy seed grain and to repair the farm buildings, and concerning an alleged trespass on 40 acres which he farmed, when neither he nor the plaintiff knew that it belonged to her. But such claims are not fairly stated or presented for an adjudication. With common business courtesy the parties could easily have stated and settled their matters, and, if not, then the proper action was one for a sale or division of the grain and its proceeds, and an accounting. So far as it appears from the record, defendant has always been ready and willing, and he is still ready and willing, to have the grain sold and to divide the proceeds in accordance with the contract on receiving the amount justlv due to him. The judgment is affirmed, with costs.
Concurrence Opinion
I concur in the result.