Dammann v. Schibsby Implement Co.

Burke, T. Some time prior to the year 1910, plaintiff sold a quarter section of land to one Tarvestad and his wife upon what is known as the half-crop contract plan. Under the terms of said contract the Tarvestads agreed to pay the sum of $4,500 principally by delivering one half of all the grain sown or grown upon said land, each and every year thereafter until the purchase price was fully paid, and it was further agreed that the Tarvestads “may deliver all the grain sown, [17] the same to be applied -upon the balance due thereon. . * . It is further agreed and understood that until the delivery of one half of said grain as aforesaid during each and every year of this contract, the legal title to the ownership and the possession of all of said grain raised during each and every year shall be and remain in the first parties. . . .” Under this contract, the Tarvestads entered into the possession of said land, and during the year 1910 raised thereon 179 bushels of flax and 25 bushels of wheat. The flax was delivered by Mrs. Tarvestad to the elevator at Hurd on November 7th of that year. She tried to sell the same, but owing to a notice given to the elevator by defendant was unable to do so, the elevator agent, however, delivering a storage ticket for the grain in the name of Mr. Tarvestad. The defendant Schibsby claims to have taken a chattel mortgage given by the Tarvestads upon this crop for the year 1910, and it was on account of his claim that the elevator company -refused to pay cash to Mrs. Tarvestad for the flax. Upon the day of the delivery, Mrs. Tarvestad went to Lansford, as she says, to deliver the storage tickets to the plaintiff, Dammann, but meeting the defendant first was persuaded to deliver said storage tickets to him after indorsing her husband’s name thereon. Plaintiff brings this action in conversion. The case was tried to a jury and evidence was offered by plaintiff’s son, who seems to have acted as plaintiff’s agent, and by Mrs. Tarvestad. Defendant offered the evidence of Alee Schibsby, who testified to the transaction whereby he obtained the storage tickets. After such testimony, both parties rested and each side made a motion that the court direct a verdict in his favor, and thereupon the court withdrew the case from the jury and made findings of fact and conclusions of law to the effect that the plaintiff was entitled to a judgment against the defendant for the value of one half of the flax. The defendant has appealed, specifying as errors certain rulings of the trial court, which may be grouped under two headings as stated- by him in his brief: “Defendant asserts that plaintiff should not prevail for the following reasons: First, because the proof shows that plaintiff was not in possession, nor had he a legal right to the immediate possession, of the grain in question at the time of the alleged conversion, and had consented to the disposal of the flax prior to that time. Second, because the proof shows that defendant was a mere general storage ticket holder, and was neither in actual [18] or constructive possession of the flax alleged to have been converted.” In considering these two propositions, we must remember that the finding of the trial court has the force of a finding by a jury, and will not be disturbed if supported by any substantial credible testimony. (1) Upon the first proposition, we think the briefest reference to the evidence will show that plaintiff was entitled to the immediate possession of the grain in question on the 7th day of November, 1910. I-Iis son testifies, after the introduction of the contract of sale aforesaid: “Tarvestad was in to see us and he told us that they would thresh there in a few days, and that they would then turn in all of the crop threshed during the year 1910 on this quarter.” Mrs. Tarvestad testifies: “I had instructions from my husband when the grain was threshed to haul it to the elevator and turn either the money or the storage tickets over to Dammam. I hauled the crop to the elevator at Hurd, Farmers’ Elevator. I tried to sell it, but it was held back; the Farmers’ Elevator held it back and said it did not belong to me. The elevator said Schibsby had a mortgage on it, — that he had advised the elevator not to sell it, or buy it from me. ... I got storage tickets from the elevator. I can’t say whether they were in my name or Mr. Tarvestad’s.” The foregoing evidence, taken in connection with the extracts of the contract which we have given, shows that plaintiff was entitled to the immediate possession of the flax upon the day in question. (2) Under this heading appellant insists that the plaintiff is pursuing either the wrong party or the wrong property; that he should have sued the elevator company which actually received the grain, and that storage tickets are not a subject of conversion. • Upon this question he argues that a general storage ticket holder is never chargeable with constructive possession of any grain, and cites us to Best v. Muir, 8 N. D. 44, 73 Am. St. Rep. 742, 77 N. W. 95; Plano Mfg. Co. v. Jones, 8 N. D. 315, 79 N. W. 338. However, after the two decisions mentioned, in St. Anthony & D. Elevator Co. v. Dawson, 20 N. D. 18, 126 N. W. 1013, Ann. Cas. 1912B, 1337, decided in 1910, this court held that an indorsement and delivery of the warehouse receipt for grain passed the title to the grain, the particular words being as follows: “Under the terms of storage tickets, Spenst had the right to demand possession of such wheat, and the elevator company would-be compelled [19] to turn the same over to him, if in its possession and the same could be done, and, if the same was not in its possession, and the identical wheat could not be delivered, it was compelled to deliver to Spenst an equal number of bushels of wheat of like grade. These matters are elementary and no authorities need be cited in support of them. It is also beyond controversy that the assignment and delivery of storage tickets unconditionally pass the title to the property and to the storage tickets to the person to whom they are delivered. This is a statutory provision in our state. Rev. Codes 1905, § 2266 [3142,. Comp. Laws 1913]. It is therefore beyond dispute that the defendants became the absolute owners of the storage tickets and of the wheat represented thereby. ... We think that the defendants were in the constructive possession of the wheat after the storage tickets were turned over to them, and this is sufficient to sustain a sale with implied warranty of title that it is free from encumbrance.” The above reasoning applies to the case at bar and supports the finding of the trial court that the defendant, for all the purposes of this litigation, received the flax and converted the same to his own use, and it follows that the plaintiff is entitled to judgment for the one half of the same. Appellant asks us, in effect, to overrule the last quoted case (St. Anthony & D. Elevator Co. v. Dawson), because, as he alleges, § 3142, Comp. Laws 1913, does not apply to elevator and other grain storage companies. We, however, consider the ease sound in principle regardless of the statute, and will follow its ruling. The judgment is affirmed.