J. G. Peppard Seed Co. v. Ekins

*2 CHERRY, C. J. This is an action to recover upon two promissory notes for $200 each executed 'by the defendant, and payable to the plaintiff. The execution and delivery of the notes were admitted, but a counterclaim was filed. The action was tried by a jury. A verdict was returned for the plaintiff, upon which judgment was entered. Defendant has appealed. The judgment is sought to be reversed upon the grounds that the evidence is insufficient to support the verdict. The dispute arises out of certain transactions had between the parties in the year 1925. The plaintiff conducted a plant for cleaning, testing, and grading alfalfa seed at Delta, Utah. The defendant was a grower of alfalfa seed. On August 31, 1925, the plaintiff and defendant entered into a written agreement entitled “Alfalfa Seed Contract,” by the terms of which the plaintiff agreed to furnish services relating to field inspection and supervision of growing-crops ; to clean, inspect, test, grade, certify, and sack alfalfa seed, and at its option to make advances and- loans to be properly secured upon growing -seed and to store and insure cleaned seed. The defendant agreed to deliver at the plaintiff’s plant for cleaning, grading, testing, etc., all alfalfa seed produced by him on “the E. R. Lyman Farm at Delta (total acreage of seed crop % of 50 acres)” and to pay for the plaintiff’s service “the sum of 35c per hundred pounds on basis of seed as delivered to the plant.” The notes sued upon were executed respectively on August 31, 1925, and September 3, 1925, and represented advances or loans made by the plaintiff to the defendant on the respective dates. The notes (which were identical except as to date) recited that “on demand, out of the first proceeds from the sale of alfalfa seed or hay, which the maker hereof agrees to store with the payee,” I promise to pay, etc., and “the undersigned represent that the money hereby advanced is for the purpose of harvesting the seed crop already signed up with the *3 J. G. Peppard Seed Co. The money advanced shall therefore stand as a first lien.” By counterclaim the defendant alleged that he had delivered to the plaintiff a quantity of alfalfa seed worth more than the amount due on the notes; that the plaintiff had disposed of the same to its own use. Defendant prayed for judgment against plaintiff for the value thereof. The plaintiff denied that the defendant delivered any alfalfa seed whatever to it. This was the principal issue at the trial. The question was submitted to the jury upon instructions of which there was and is no complaint, and the jury found for the plaintiff. It is contended, however, on this appeal that the evidence is insufficient to support the verdict, because it is claimed that the evidence shows a delivery of alfalfa seed, by the defendant to the plaintiff, which had a value in excess of the plaintiff’s notes. The evidence disclosed that the “E. R. Lyman Farm at Delta,” referred to in the “Alfalfa Seed Contract,” belonged to Mrs. Mary E. Jensen; that the defendant, during the season in question, had some arrangement with Mrs. Jensen for the growing of alfalfa seed on the farm referred to upon a crop sharing basis; that a dispute existed between them concerning the share or interest of the defendant in the crop. Mrs. Jensen had agreed to deliver the alfalfa seed grown by her to the plaintiff to secure advances previously made to her. the alfalfa seed on the “E. R. Lyman” farm was harvested and threshed, and ready to be delivered to the plaintiff for cleaning, etc., Mrs. Jensen notified the plaintiff that the seed from her farm belonged to her, and that, when delivered, it would be for her account. Thereafter the defendant hauled the whole crop of seed to the plaintiff’s plant, and was told that Mrs. Jensen claimed all of the seed, and that it would be credited to her account. There is a conflict in the evidence upon the subject of the defendant’s response to this notice. A witness for the plain *4 tiff testified that the defendant, upon being- informed that Mrs. Jensen claimed all the seed, and that it was to be deposited with the plaintiff to her account, replied, “That is all right. I don’t care a damn how it is put.” At the time of delivery, slips or tickets showing the weights of each load were delivered to the defendant by an agent of the plaintiff. One slip contained the statement, “Reed, from Mary E. Jensen By A. L. Ekins,” and three others recited “Reed, from Mary E. Jensen Farm By A. L. Ekins,” followed by the number of sacks and weight. The defendant testified that, when he delivered the seed, and was told that Mrs. Jensen claimed it all, he said he did not care how it was placed, so he would be protected. There was evidence offered and received respecting the terms of the crop-sharing agreement between the defendant and Mrs. Jensen, which was conflicting. The defendant testified that he was to have half of the crop. On behalf of Mrs, Jensen there was proof that no definite agreement had been made; that defendant was not to have half the crop; but that the interest of the defendant in the net proceeds of the crop was to be prorated according to the attention and time and expenses he put on it. The defendant had refused to sign a proferred contract, and had been ordered off the place for delinquency and refusal to handle the crop as directed by Mrs. Jensen. Upon the whole, we think the jury was justified in finding that no delivery of seed was made to the plaintiff by the defendant on his own account, pursuant to the provisions contained in the note and the “Alfalfa Seed' Contract.” Under the circumstances, it was competent for the jury to find that the plaintiff was warranted in dealing with the seed delivered as the property of Mrs. Jensen, and disposing of it upon her order, which the evidence shows was later done. The jury was justified in concluding that the defendant *5 never claimed any interest in the seed when it was delivered to the plaintiff. This conclusion disposes of the appeal. Other questions presented are dependent upon the fact of delivery of seed ■by the defendant as security for the payment of his notes. Since the jury found against such delivery upon what we deem sufficient evidence, those questions become immaterial. Judgment affirmed. ELIAS HANSEN and FOLLAND, JJ., concur. Hon. EPHRAIM HANSON, J., being disqualified, did not participate herein.