Hanson v. Menoken Farmers Co-Operative Asso.

BeoNSON, Ch. J. Plaintiff seeks to recover, through conversion, the value of flax stored in an elevator. The facts necessary to be stated are: — Plaintiff was a farmer. Defendant Co-operative Association formerly operated and maintained an elevator at Menoken, N. D. Defendant Trust Company executed a bond to secure the faithful performance of the Association’s duties as a public warehouseman. The complaint alleges that on Oct. Yth, 1919, defendant Association received in storage from plaintiff about 182 bushels of flax at its elevator at Menoken and issued therefor its storage receipt as prescribed by the laws of the state; that on August 1st, 1919, defendant Trust Company issued its surety bond conditioned for the faithful performance of the elevator’s duties as a public warehouseman; that on March 1st, 1922, defendants’ Association made default in the redemption of the storage ticket and has failed to redeem said ticket or to redeliver the grain represented by it; that prior to the commencement of the action plaintiff made demand upon defendants for redelivery of the grain which demand was refused; that at the time of such demand and shortly thereafter the grain was of the reasonable value of $3.50 per bushel being the highest market price between the time of the demand and the present time. Judgment accordingly was demanded for the sum of $640.00. Plaintiff stated and insisted before the trial court that he was suing for conversion and upon contract; he insisted upon the right to establish conversion and the right to recover as damages the highest market value of the flax from the time of the demand to the time of the trial. Over objection of the defendants, he was permitted so to do, although the trial court during the course of the trial did not specifically overrule defendants’ objections and determine that the action was one for conversion. The court, however, submitted the issues to the jury upon the theory of conversion and instructed the jury upon the right of plaintiff to recover the highest market value of the flax up to the time of the suit. The court also instructed the jury that if it found a verdict against the Association it should also find a verdict against the defend *128 ant Trust Company. The highest market price, namely, $2.56 per bushel, was on May 5th, 1922. The jury returned a joint verdict against both defendants for such market value on May 5th, 1922, without allowance or deduction for any storage charges as provided by the contract contained in the storage receipt issued. Defendants made a motion for judgment non obstante or in the alternative for a new trial. This motion was denied. From the order so made and from the judgment, defendants appealed. Defendants, upon this appeal, have made many specifications of error. In view of the fact that a new trial must be granted through one error of the trial court affecting the entire proceedings, it is necessary to consider only this one error. It is evident that plaintiff had a cause of action upon the bond against defendants, respectively, as principal and surety, in contract alone and not in tort. Manifestly, the defendant Trust Company was not a tort feasor; its liability rests in contract alone; the cause of action, as alleged, if a cause of action at all, against both defendants, is a cause of action in contract. It is indeed anomalous to have the same complaint regarded as a tort action against one defendant and as a contract action against another; assuredly, it could not be regarded as a tort action against both. For fundamental reasons, further discussion is unnecessary. The trial court simply overlooked the necessity of preserving the contract features of the action, if the same were to be pressed against both defendants, when the time came for it to orally instruct the jury. The court had made some observations in this regard during the course of the: trial. Of necessity, the action must be prosecuted as a contract action if plaintiff intends to hold both defendants jointly liable thereupon in this action; otherwise, the action -must be dismissed as to defendant Trust Company. The judgment is reversed and a new trial granted. Nuessi.b, I., concurs.