Phillip Best Brewing Co. v. Pillsbury & Hurlbut Elevator Co.

Thomas, J. This action was instituted in the district court of Grand Forks county by the respondent, a private corporation, against the appellant, also a private corporation, for th& alleged conversion of a quantity of wheat of which the respondent claimed to be the owner, by reason of a chattel mortgage executed and delivered to it by one H. H. Cline, on the 1st day of May, 1883, the which was duly recorded in the office of the register of deeds of Grand Forks county, on the 28th day of May, 1883. The mortgage was regular as to form, and purported to convey to respondent “all that crop of small grain, wheat, and oats, either or both, now growing on the north-west quarter of section thirty-two, township one hundred and fifty-two, and range fifty-one,” and describing land owned by one Dr. Scott, and situated in said county. The cause was tried by the court, a jury having been waived [66] by both parties in open court. The trial -resulted in the rendition of judgment for the respondent for the sum of $792.21, with interest, costs, and disbursements. In due time and manner appellant moved the court below for a new trial, based on a statement of the ease containing exceptions and all the evidence. The motion was overruled, and the appellant brings the case here for review, and seeks to have the order denying a new trial set aside, and the judgment reversed, in support of which he assigns numerous errors, but chiefly relies on the following: “First. The mortgage covers only such crops as were in existence at the date of its execution. That there was no proof that the wheat mentioned in said mortgage was sown or in esse at the date of the mortgage, and the court erred in so finding. Second. That the court erred in finding ‘ that during the month of September, 1883, and between the 10th and 29th of said month, the defendant took, converted, and carried away all of said wheat, of the value aforesaid, and converted the same to its own use, and mixed the same in an indiscriminate mass of other wheat.’ Third. That appellant was a mere bailee, without notice, and delivered the wheat to the vendee of Cline, the bailor, as was its duty to do under the law.” The first objection raised by the appellant presents two points for our consideration; but as the first may be settled by a determination of the latter, we deem it necessary to consider the latter only. In this it is contended by counsel for appellant that there is no sufficient proof to warrant the court below in finding as a fact that the wheat was sown or growing at the date of the mortgage. It is a well-established rule, and one more frequently announced than almost any other, that courts of last resort will not set aside or disturb a verdict of a jury, or a finding of a court when acting in the place of a jury, when it appears from the record that there was evidence on the point thus determined substantially tending to support it. In other words, the supreme court [67] will not disturb a finding of the court below where the testimony concerning it is conflicting, even when in the opinion of the court it is against the weight of the evidence. Kile v. Tubbs, 32 Cal. 332; Lick v. Madden, 36 Cal. 213; Caulfield v. Bogle, 2 Dak. 464. In the latter case the learned judge, in delivering the opinion of a unanimous court, says: “It may be, as claimed by the counsel for the appellant, that the finding of the court is contrary to the weight of testimony, but it cannot be denied that there was some evidence to sustain the findings. Of the credibility of this evidence the court below, acting as the jury, was the sole judge. To set aside his findings because we might have found the other way, had we occupied bis place, would be to substitute our judgment for his upon a question of fact, which, as this court has uniformly held, we cannot do. ” This is a clear and correct statement of the rule, and we, being satisfied from an examination of the testimony as contained in the record that there was some evidence which substantially tended to support the findings of the court below on this point, cannot therefore disturb it. This view renders it entirely unnecessary to discuss the first proposition embraced in this objection. The findings of the court embraced in the second ground of objection is a question of mixed law and fact. As to the findings of fact as contained therein the objection is disposed of in like manner as the first, and for similar reasons; that is, there is sufficient evidence to sustain them. The question of conversion is one of law, depending upon certain facts, and a determination of this necessarily involves a consideration and discussion of the last and third objection herein, that the appellant was a mere bailee, without notice, etc. The proof shows, and it was so found by the court, that the appellant was the owner and keeper of an elevator at Ojata, a railroad station in the county of Grand Forks, in the neighborhood of where the mortgaged wheat was grown; that it was the custom of appellant to receive wheat into its elevator from any one who desired to deliver it; that on the receipt of wheat it was deposited in the [68] warehouse or elevator in such a manner as to become mixed with the mass of wheat belonging to appellant or other parties. The wheat in controversy was delivered and deposited in the warehouse of appellant by H. H. Cline, the mortgagor, and it thus became mixed by the appellant with a large mass of its own or other parties’ wheat. Tickets or vouchers were issued by appellant to Cline, showing the quantity and quality of such wheat deposited by him. Cline, it seems, sold the vouchers to C. A. Pillsbury & Co., a firm of millers at Minneapolis, Minn. Appellant, upon the presentation of these tickets or “warehouse receipts” by said firm, shipped to them the quantity of wheat called for by these vouchers as aforesaid. The mortgage on said wheat was not due at the time of the delivery to appellant by Cline, and it is therefore contended that it was no breach of the conditions of the mortgage, and therefore works no forfeiture. The truth of this proposition depends upon the circumstances surrounding the transaction. If the transaction were a regular deposit by Cline, the mortgagor, appellant was a mere bailee, and it is not liable as such to respondent for the wheat, there being no breach of the conditions of the mortgage, and therefore no forfeiture, unless the appellant committed acts concerning said wheat that in law constitute a conversion. But if, as is shown by the proof and findings of the court in this ease, the which we cannot disturb, the appellant, at the time or after it received the wheat, and with or without the consent of Cline, mixed it with an indiscriminate mass of other wheat of its own, thereby rendering it impossible of identification or reclamation by the respondent, and sold and shipped the same out of the country, it was not only such a breach of the terms of the mortgage that worked a forfeiture as to Cline, but was in law a conversion of the wheat by appellant to its own use; so far as the respondent is concerned. Chase v. Washburn, 1 Ohio St. 244; Shepards v. Barnes, (Dak.) 14 N. W. Rep. 110. The appellant having converted the property in controversy by mixing and confusing it with his own, or that of others, and [69] having shipped it into a foreign state in this condition, there •can be no doubt it is liable to respondent for the value thereof. As said before, there are numerous other assignments of error set out by appellant in the record; but as they were not pressed on the attention of this court by counsel we have not •deemed it necessary to notice them in detail, or to discuss them =at length, but suffice it to say that after a careful examination of the entire record herein we find no errors that would warrant a reversal of the action of the district court in this cause. .Hence the judgment is in all things affirmed. All the justices concurring.