Skjerseth v. Woodworth Elevator Co.

Bruce, J. This is an action for the alleged conversion of grain, and the.appeal is taken by the plaintiff from a judgment rendered against, him on a directed vei'dict. The complaint alleges that on the 28th day of November, 1913, the plaintiff Skjerseth was the owner of and in the possession of 121 bushels, of wheat, the market value of which on said day was $86.40; that on said day one Erank Pop wrongfully took said wheat from the possession of the plaintiff and wrongfully and unjustly detained the same; “that thereafter the same came into the possession of the defendant, who-refused to deliver them to the plaintiff, although before this action, to, wit, on the 26th day of May, 1914, the plaintiff duly demanded of the-defendant the possession of the same; that the defendant still unlawfully withholds and detains the said goods and chattels from the possession of the plaintiff to his damage in the. sum-of $86.40, with interest thereon [297] at 1 per cent per annum from the 28th day of November, 1913.” A judgment for said amount is then prayed for. Several assignments of error are presented and argued by counsel for appellant, but all of them may be conceded and yet the judgment must be sustained. In any view of the case, indeed, the plaintiff utterly failed in his proof, and the trial court was justified in directing a verdict against him. It is not claimed or pretended that when the agent of the company obtained possession of the grain on November 28, 1913 (if in fact he ever did), that he did so maliciously or with any specific intention to deprive the plaintiff of it. All that is contended, indeed, is that plaintiff’s tenant, Korsell, directed a farm laborer, Pop, to take the grain to the Woodworth elevator at Courtenay, the lease providing that it should be there delivered and divided between the landlord and tenant, but that instead of doing this Pop took it to the defendant’s (the Wood-worth) elevator at Kensal and there sold it. There is no proof of any demand for a return of the grain, but merely a conversation in relation thereto, and an attempt to trace it, and this on or about the 29th day of November, 1913. The complaint alleges a demand on the 26th day of May, 1914, and no such demand is proved. Even if proved, then the conversation would take place and the damages would be based on the market value of the grain on that day or the highest value between that date and the verdict. Comp. Laws 1913, § 1168. There is no proof whatever of this value; the value on November 28, 1913, alone being sought to be proved. The case, indeed, is, as far as we can see, entirely controlled by the cases of Towne v. St. Anthony & D. Elevator Co. 8 N. D. 200, 77 N. W. 608 and Citizens Nat. Bank v. Osborne-McMillan Elevator Co. 21 N. D. 335, 131 N. W. 266, and First Nat. Bank v. Minneapolis & N. Elevator Co. 11 N. D. 280, 91 N. W. 436, and in deference to these decisions the judgment must be affirmed. It is so ordered.