Buchanan v. Occident Elevator Co.

Christianson, J. This is an action to recover damages for the .alleged conversion of certain grain covered by a chattel mortgage, ■executed and delivered to the plaintiffs by one Harper, the owner of the grain, and which grain was delivered and sold by said Harper in January, 1913, to the defendant at its elevator at Sykeston, in this state. The jury returned a verdict in favor of the plaintiffs for $1,021.96. Judgment was entered pursuant to the verdict, and defendant has •appealed from the judgment. (1) At the close of plaintiff's case in chief, defendant moved for a •dismissal of the action. This motion was overruled and this ruling is assigned as error. The record shows that after the denial of such motion, defendant introduced considerable testimony, and the motion was not renewed at the close of all the evidence. Hence, under numer [350] ous decisions of this court, the error, if any, in the denial of defendant’s motion for nonsuit was waived by defendant. See Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000; Colby v. McDermont, 6 N. D. 495, 71 N. W. 772; Tetrault v. O’Connor, 8 N. D. 15, 76 N. W. 225; First Nat. Bank v. Red River Valley Nat. Bank, 9 N. D. 319, 83 N. W. 221; Ward v. McQueen, 13 N. D. 153, 100 N. W. 253; Madson v. Rutten, 16 N. D. 281, 13 L.R.A.(N.S.) 554, 113 N. W. 872. See also Pease v. Magill, 17 N. D. 166, 115 N. W. 260; McBride v. Wallace, 17 N. D. 495, 117 N. W. 867; Landis Mach. Co. v. Konantz Saddlery Co. 17 N. D. 310, 116 N. W. 333. (2) Among the questions raised by defendant on this appeal is that the evidence is insufficient to sustain the verdict. This question was not raised in the court below either by motion for a directed verdict, or by motion for a new trial, but is presented for the first time on appeal. Under the rule announced by this court in Morris v. Minneapolis, St P. & S. Ste. M. R. Co. 32 N. D. 366, 155 N. W. 861, the sufficiency of the evidence to sustain the verdict cannot be assailed for the first time in the appellate court, but this question must first be raised in some appropriate manner in the tidal court. (3) Certain errors are assigned upon rulings in the admission and exclusion of evidence. Many of the errors so assigned, however, really go to the question of the sufficiency of the evidence to establish various-elements of plaintiff’s cause of action, such as whether a sufficient demand was made upon the defendant; whether there was sufficient evidence of default in the payment of the notes secured by the mortgage; whether the evidence showed waiver on the part of the plaintiffs of the lien of their mortgage, and the amount of plaintiff’s lien. No requests were made for instructions upon the specific questions, or at all; nor was the sufficiency of the evidence to sustain plaintiff’s cause of action as a whole, or any specific element thereof, challenged in any manner in the trial court. And therefore under the rule announced in Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. supra, this question cannot be raised for the first time in this court. (4) Certain assignments of error are predicated upon the instructions to the jury. The instructions assailed are as follows:— (a) “It is incumbent upon the plaintiffs to show you that they have in this case a valid and special lien upon the property in question; that [351] it has not been paid or satisfied; that it covers the identical property in question. It is further incumbent upon them to establish by a fair preponderance of evidence that the same was delivered to this defendant, the price of the grain, that they have made a demand prior to the commencement of this action for the sajne of the defendant company, and that it has refused and neglected to deliver the same to the plaintiffs. If you find these issues in favor of the plaintiffs, then it will be your duty to find a verdict in favor of the plaintiffs in this action for such sum as you shall find that they have been damaged from the evidence.” (b) “If you find that the grain in question was the grain described in plaintiff’s mortgage, and that it was delivered to the defendant elevator company, and that the plaintiff has made a demand upon the elevator company for the grain or the value thereof, prior to the commencement of this action, then your verdict should be in favor of the plaintiff for the value of the grain, as established by the evidence and as has been proven as the value thereof and the amount of the grain.” (c) “The fact that the plaintiffs have a chattel mortgage upon certain grain is constructive notice to all parties of the fact of the mortgage and of the lien.” Appellant’s counsel contends that the chattel mortgage was not a valid lien upon the grain in question, unless defendant had either actual or constructive notice thereof. It is asserted that the instructions in question omit this essential element, and hence are erroneous. The testimony relative to the execution, delivery, and recording of the mortgage was undisputed. Hence, defendant could hardly be prejudiced by the instructions under consideration. We find, however, that the court also instructed the jury as follows: “There could be no conversion until the plaintiffs have shown that they had a mortgage which is filed for record, and that it covers the property in question, and that the same was delivered to the defendant company, and that plaintiff has made a demand for the particular property or for the value thereof.” This-court has repeatedly held that the instructions must be considered as a whole. When the instructions in this case are so considered, defendant has no cause for complaint. (5) Defendant further complains because the trial court failed to instruct the jury and outline “certain rules and directions that would [352] serve and tend to guide them in determining what, under the law as found by the evidence before them, would constitute a proper and legal ■demand;” and that the court’s instructions upon the question of whether plaintiffs waived the lien of their mortgage were incomplete in this that, while the court instructed as to the effect of plaintiff’s express consent to, or direction of, a sale of the grain,'it failed to instruct upon the proposition of implied consent or directions to make such sale. It is ■conceded that no requests were made for further or additional instructions. In absence of such requests, defendant is in no position to complain because the instructions were not sufficiently full and explicit. In considering the same question in McGregor v. Great Northern R. Co. 31 N. D. 471, 154 N. W. 261, 266, we said: “Even though the instruction complained of was not entirely perfect, this would not necessarily constitute reversible error, unless it further appears that the jury were misled thereby. Ebr ‘courts of error do not sit to decide moot questions, but to redress real grievances. It is therefore a rule of nearly all the courts that no judgment will be reversed on account of ■the giving of erroneous instructions, unless it appear probable that the jury were misled by them.’ Thompson, Trials, § 2401. The defendant made no request for any further or additional instruction; and it is difficult to see how at this time it can be heard to say that the court should have further explained or qualified the instruction in question. Where an instruction is correct as far as it goes, error cannot be assigned -on the ground that it was not sufficiently full or explicit, unless request is made for more specific and comprehensive instruction.” (6) Error is also assigned upon the action of the court and adverse party in the examination of one Evans. Evans had been employed by Harper and had hauled some of the grain covered by plaintiffs’ mortgage. Evans was called as a witness by the plaintiffs, and while so testifying, the court propounded the following questions to him:— Q. Are you telling us what you know about this matter here ? A. Yes, sir. Q. Don’t you remember this, any of these transactions at all ? A. Remember the flax was sold there, sold after December 6th I do not know, Harper sold same. Q. Not asking about what was sold; when was it hauled? [353] A. I don’t remember when it was hauled, I do not know the dates of it. Q. Well, how much was hauled ? A. It was about 400 bushels in the bin. Q. Do you know if that flax was hauled to the Occident elevator or not? A. No, not up to the Occident elevator, no. Defendant’s counsel contends that plaintiffs’ counsel knew that Evans had been subpoenaed as a witness for defendant, and that Evans was called as a witness by plaintiffs for the sole purpose of discrediting him with the jury before defendant had an opportunity to call him as a witness. Defendant particularly complains of the questions propounded by the court. At the time the court propounded these questions, Evans was testifying as a witness for the plaintiffs. There is nothing to indicate that the court had any knowledge of the fact that Evans had been subpoenaed as a witness for the defendant. Nor is there anything to indicate that the trial court’s examination was conducted in an improper manner. The presumption is that the court’s action was occasioned by a sense of duty, that it was actuated by proper motives, and properly conducted. The testimony of Evans (as defendant’s counsel concedes) was not at all satisfactory, and the questions propounded by the trial court were apparently asked for the purpose of ascertaining, if possible, the truth with reference to the matter to which Evans had testified. The court’s action in propounding these questions to Evans does not constitute prejudicial error. See 21 Enc. PI. & Pr. 990. The judgment must be affirmed. It is so ordered.