Coughran v. Western Elevator Co.

FULLER, J. On this appeal from a judgment and order denying a new trial of this action by a mortgagee to recover the value of certain grain purchased from the mortgagor by the respondent elevator company, the only ground of argument for a reversal is that the evidence is not sufficient to sustain the verdict. That the indebtedness secured by the mortgage exceeded the value of the grain described therein, and so purchased by respondent is undisputed, and a waiver by appellant of the usual conditions against the sale or removal of the property by the mortgagor was the principal issue tried. and .submitted -to the jury under instructions with which 'all concerned appear to be well 'satisfied. It was shown at 'the trial that the mortgagor, James McGrath, .had been appellant’s tenant for many years, and as such raised [215] the grain covered by the mortgage during the farming season of 1905, and sold and delivered the same to respondent at the village of Rowena in the month of September of that. year. Though controverted in ’ some material respects, McGrath’s testimony was to the effect that after the wheat crop had been sold and delivered to respondent, but before the purchase price had been paid, -he called at the office of appellant in Sioux Falls ,and expressed a desire to hold the oats for a better price, but appellant was of the opinion that the market was declining, and, upon being informed that certain bills’ and the expenses of threshing had not been paid by McGrath, he told him to “go Out and sell and settle up.” By counsel for appellant: “Q. Mr. Coughran did not tell you to bring in the money to him, did he? A. No; he told me to sell and settle up, and he asked me what day I would be in, and I named a day, and I did not go in,” On the witness stand in his own behalf appellant made the following statement relative to the sale of the oats by McGrath to respondent’s grain buyer, N. C. Ribby: “I then told him he had better sell the oats, for I needed the money; to go through the account, and have a settlement with Ribby to know where he stood; that Mr. Ribby would send me a check by Monday’s mail. This he agreed to do. That is all the talk I' ever had with McGrath about disppsing of this grain to Ribby.” Mr. Ribby /testified on the part of-the defense as follows : “I have resided at Rowena since the fall of. 1904. My business is grain buyer and station agent. I was employed as local manager for defendant at Rowena in September, ’1905. As such manager I bought certain grain from James McGrath. I paid the money, the proceeds of the wheat and oats I purchased, to McGrath. Before paying this money I had two or three conversations with plaintiff regarding it. The first was about September 7 or 8, 1905, in the depot at Rowena. I cannot give the exact words used, but he came in and introduced himself, and inquired about McGrath selling the grain, and wanted to know if he had settled. I told him he had not. He inquired as to where McGrath was, and said he came out by his place ’expecting to see him but was unable to. He wanted to know how much grain had been brought in. I figured up the amount. He spoke at that time about some grain that [216] was piled on the ground as he noticed in driving by. That is all I remember. The next conversation was the next day in the depot, I think. He asked if McGrath had been in, and I told him ‘No’; that I 'was ready and anxious to settle. Nothing was said about holding the money. He said that he would like for McGrath to settle and bring the money in, and that he didn’t see why he did not it. Nothing -was said by Coughran about -having any lien on the grain.” This witness was measurably corroborated by his wife, -but positively disputed by appellant, and also by Mr. Doolittle, ■ who testified that Mr. Coughran told Dibby not to- pay McGrath any money, because he (liad a mortgage on the grain. If appellant authorized McGrath to sell the grain and collect the money, there was a complete waiver of his mortgage lien, and the probative force of the conflicting testimony relative to that question was for the jury to' determine. As different impartial minds might reasonably draw different conclusions from the facts and circumstances in evidence, the verdict for respondent is- sustainable by the prevailing rule and the uniform decisions of this court. Haugen v. Chicago, M. & St. P. Ry. Co., 3 S. D. 394, 53 N. W. 769; Land & Irrigation Co. v. Hawley, "7 S. D. 229, 63 N. W. 904; McKeever v. Homestake Mining Co., 10 S. D. 599, 74 N. W. 1053; Kielbach v. Chicago, M. & St. P. Ry. Co., 13 S. D. 629, 84 N. W. 192; Lockhart v. Hewitt, 18 S. D. 522, 101 N. W. 355. Rinding the evidence sufficient to sustain the verdict, the judgment entered thereon is affirmed.