Mohall State Bank v. Duluth Elevator Co.

Christianson, J. Plaintiff seeks to recover of the defendant damages for alleged unlawful conversion of grain. The undisputed facts are as follows: One Sleeper, the president and an active officer of the plaintiff bank, was the owner of certain lands in Eenville county. In 1912 he leased these lands to one Campbell. Under the terms of the lease the grain produced was to be divided in the fall of ,1912 between Sleeper and Campbell. Campbell executed and delivered to the plaintiff bank a chattel mortgage upon his share of the grain. In the fall of 1912, the agent of the defendant elevator company saw Mr. Sleeper and requested that Sleeper use his influence with Campbell to induce him to sell his share of the grain to the defendant. Sleeper, who as already stated was the owner of the land and president of the bank and one of its active officers, had personal knowledge of the fact that Campbell hauled his share of the grain to the defendant elevator company. In fact, he admits that he was present at the time a considerable portion thereof was delivered at the elevator of the defendant. He admits that he at no time informed the defendant that the plaintiff had a mortgage upon this grain, although he admits that he had personal knowledge of the existence of such mortgage. The evidence further shows that the chattel mortgage of the plaintiff bank also covered certain other personal property, and that on November 24, 1914, the plaintiff released two mules covered by this mortgage. The defendant had no personal knowledge or notice of the existence of the chattel mortgage, and no demand was made upon it by the plaintiff until the 21th day of February, 1915, when a demand was made upon the defendant by registered mail, and subsequently about April 15, 1915, written demand was served upon its agent at Mohall. The only evidence of value offered by the plaintiff was the market value of the grain in March and April, 1915. At the conclusion of plaintiff’s case in chief the court directed a verdict for the defendant for a dismissal of the action, and the plaintiff has appealed from the judgment. The sole question presented on this appeal is whether under the undisputed facts, defendant was entitled to a directed verdict. It is a maxim of our jurisprudence that “one must not change his purpose to [622] the injury of another” (Comp. Laws, § 7246). And “when one of two innocent persons must suffer by the act of a third, he by whose negligence it happened must be the sufferer” (Comp. Laws, § 7277). And estoppel is fundamentally based upon the idea that “he who is silent when conscience requires him to speak shall be debarred from speaking when conscience requires him to keep silent.” 16 Cyc. 681. See also Branthover v. Monarch Elevator Co. 33 N. D. 454, 156 N. W. 927. By applying these principles to the case at bar, we reach the conclusion that plaintiff is estopped from asserting its mortgage lien against the defendant herein. Judgment affirmed. Grace, J., being disqualified, did not participate.