McKindley v. Citizens State Bank

Christianson, J. The plaintiff McKindley is the owner of a judgment against Frederick Milling Company and A. EE. White, rendered August 7, 1911, in Hennepin county, Minnesota, for $6,384. As collateral to the indebtedness merged in the judgment, plaintiff held two executory contracts for the purchase of certain lands in Nebraska, •executed by the Union Pacific Railway Company to one Swallow, and transferred to the plaintiff McKindley from a subsequent assignee by an assignment in blank. McKindley subsequently instituted suit upon this judgment in the district court of La Moure county in this state, and such action was awaiting trial at the February, 1914, term of said court. For the purpose of compromising the indebtedness evidenced by the judgment and certain advances made on the collateral contracts, a written agreement, dated January 28, 1914, was entered into between said McKindley as party of the first part, Dakota Grain Company as party of the second part, and A. H. White as party of the third part, under the terms of which McKindley agreed that the proceedings in the action pending in the district court of La Moure county be stayed for a period of ninety days, and that upon the payment to him of the sum of $7,600 he would dismiss said action without costs, — 460 — and assign to the said Dakota Grain Company the contracts for the Nebraska land, and the judgment in the district court of Hennepin county, Minnesota; the Dakota Grain Company agreed to pay such sum of $7,600 on or before the ninety days after the date of the contract,, and the said White and Dakota Grain Company agreed that the Frederick Milling Company and 'White would default or confess judgment in the action pending in the district court of La Moure county, and; that in case said sum of $7,600 was not paid within ninety days, that then judgment should go by confession or default against said Milling Company and White in the action pending in the district court of La Moure county. It was further agreed that time should b.e of the essence of the-contract, and that an assignment of the judgment and assignments of' the Nebraska land contracts, together with said contracts, should be-deposited with the Citizens Bank of Lisbon, North Dakota, to be held in escrow for a period of ninety days from the date of the agreement,, and in case of payment of $7,600 before the expiration of such time, such papers should then be turned over to the party of the second part, but if the party of the second part failed to pay the money before or on said date, then in such case all of said papers were to be delivered to-the party of the first part. The papers were subsequently delivered to and deposited with the Citizens Bank of Lisbon in escrow under the terms of this agreement. On June 17, 1914, the Citizens Bank of Lisbon, at the request of Curtis & Curtis, attorneys for the plaintiff bank, forwarded the papers to the defendant, Citizens State Bank of Edgeley, with the following instructions: “You will please deliver these-papers to either A. H. White or Dakota Grain Company, upon the payment to you for us of $7,600, with interest at the rate of 6 per cent from April 28, 1914, upon the same, — -this to be net to us. If this is. not closed up on or before July 1, 1914, you will immediately return to us all of the above-mentioned papers.” The papers were received by the defendant bank and receipt thereof acknowledged. On June 19, 1914, the defendant bank wrote the forwarding bank that “we believe it-impossible to make returns as early as July 1st, for the reason that the company is floating a bond of considerable amount,, and we do not think it will be completed by that time so that the money will be forthcoming.” The forwarding bank thereupon notified. — 461 — the defendant bank tbat tbe time in wbicb to collect or return tbe papers was extended until further notice. On October 19, 1914, tbe forwarding bank wrote tbe defendant, demanding tbat tbe papers or tbe cash be transmitted to it by October 19, 1914. A. H. White and others formed a corporation known as tbe Interstate Investment & Holdings Company, and tentative arrangements were made with tbe Central Trust Company of Chicago, Illinois, to float a bond issue for tbe interstate Investment & Holdings Company, to be secured by various properties. And in connection with this matter, tbe defendant bank forwarded tbe papers involved herein to tbe Central Trust Company, to be delivered to tbe Interstate Investment & Holdings Company upon payment of tbe value fixed thereon. Tbe proposed bond issue for some reason was never floated, and upon -the trial it was stipulated as facts in tbe case “tbat tbe plaintiff McKindley at all of tbe times material in this action set out in tbe ■complaint was aware of tbe formation of tbe Interstate Investment & Holdings Company, and tbat tbe interests of White in tbe lands described in tbe complaint were to be a part of tbe lands to be turned into the said Interstate Investment & Holdings Company, and used as ■security for said bond issue, and tbat said exhibits were subsequently ■deposited with tbe Central Trust Company of Illinois, who were to .act as trustee in said bond issue, but wbicb said bonds were not issued, and said exhibits are still in tbe possession of tbe Central Trust Company of Illinois, tbe same being done without tbe knowledge or consent •of tbe plaintiff in this action.” It was further stipulated “tbat no change has been made in tbe record -title of tbe lands in question, so far as tbe plaintiff or defendants know, and tbat tbe defendant has not entered into actual occupancy of any of tbe lands in question at any time, and tbat tbe instruments in question, and described in this complaint, have not been placed of record.” And “tbat tbe defendants have not asserted or claimed title to any of ■.said lands described in said exhibits.” It further appears from the stipulation of facts or tbe evidence in tbe case tbat tbe defendant demanded tbe papers from tbe Central Trust Company on December 2, 1914, and tbat tbe trust company ■asserts no title or ownership to tbe property, either for itself or as trustee, but denied possession of tbe same to tbe defendant upon the — 462 — sole ground that an attorney of Chicago had served notice upon the trust company that he claimed a lien thereon for work done in connection with said papers. McKindley and the Citizens Bank of Lisbon, as joint plaintiffs, instituted this action against the defendant to recover damages in the sum of $10,000 for the alleged conversion of the papers. The defendant, by its answer denied all the allegations of the complaint. The cause was tried to the court without a jury, and resulted in findings of fact and conclusions of law awarding a judgment in favor of the plaintiff and against the defendant for the sum of $10,000 and costs, and dismissing the action in so far as the Citizens Bank of Lisbon is concerned. Judgment was entered pursuant to such findings and conclusions and defendant has appealed from the judgment. (1) Under the laws of this state, every person who suffers detriment,, i.e., loss or harm in person or property, may recover from the person in fault compensation therefor in money, which is called damages» Comp. Laws 1913 § 7139. The measure of damages for the breach of an obligation not arising from contract, except when otherwise expressly provided, is the amount which will compensate the party injured for all detriment approximately caused thereby. Comp. Laws, 1913, '§ 7165. The detriment caused by the wrongful conversion of personal property is presumed to be: 1. The value of the property at the time of the conversion, with the interest from that time; or, 2. When the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and, 3. A fair compensation for the time and money properly expended in pursuit of the property. Comp. Laws 1913, § 7168. Among the questions raised by defendant on this appeal is the sufficiency of the evidence to sustain the court’s finding that the instruments converted were of the value of $10,000. Defendant’s counsel contends that there is no proof whatever of the value of-such instruments; that the title to the real estate described in such instruments was and still is in the plaintiff McKindley, and — 463 — that said real estate has never been delivered to or claimed by defendant, but is still in the possession of and occupied by plaintiff. The only evidence upon which a finding as to damages could be predicated was the following testimony of the plaintiff McXindley: Q. Have you made a computation as to whether or not the amounts you paid on the land contracts and taxes, together with the amount due upon the judgment, amount to more than the sum of $10,000 ?' A. Yes, sir. Q. And state whether or not it does amount to more than $10,000 ?' A. It does. Q. Are you acquainted with the value of these lands in controversy ? A. Somewhat, yes. Q. What is the land worth per acre ? A. It is worth, as near as I would say, from $10 to $12 an acre. Q. Your information is derived from parties living in the vicinity of the land, is it ? A. Yes, sir. Q. And also from A. H. White, the party from whom you obtained the contracts? A. Yes, sir. No evidence was offered tending to show the value of the papers themselves, or the damages caused to plaintiff by reason of being deprived of such instruments. Plaintiff bases his claim wholly on the proposition that the instrument in question was equal in valúe to the property described therein. (2) In support of this contention, plaintiff cites § 1180, Compiled Laws, which reads: “Por the purpose of estimating damages the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner.” It is contended that inasmuch as plaintiff testified that the land was worth $10,000, it must be presumed, under the provisions of the section quoted above, that the contracts converted were of an equal value. The applicability of this section to certificates of national bank stock was considered by this court in Patterson v. Plummer, 10 N. D. 95, 86 N. W. 111. The court said: “The section referred to is a common one. So far as we have ascertained, it has been applied only to insirur — 464 — merits which upon their face entitle the holder to specific sums of money -or specific property, such, as promissory notes, drafts, warrants, and mortgage debts. (Citation of authorities.) But even if the section is applicable to certificates of bank stock, it does not aid plaintiff’s •contention. As we have seen, it entitles the holder only to a shareholder’s right, and to no specific property owned by the corporation.” Obviously there is a great difference between certificates of bank stock and executory land contracts, and there is unquestionably more reason for applying it to the former than to the latter. The par value of stock in a national bank is fixed by the Federal statute at $100 per .share, and the stock is deemed personal property and subject to sale and delivery as such. See 5 Fed. Stat. Anno. § 5139, and authorities cited in note. The contracts involved in this action are merely evidence of plaintiff’s interest in lands. The loss or destruction of these instruments would not affect his title, but merely his ability to prove it in the most convenient manner. A conversion of a conveyance of real property •does not transfer title to the converter. Sedgwick (Sedgw. Damages, 9th ed. § 262) says: “The rule of •damages in trover for title deeds has not been much discussed in the reports. There can be little doubt that in this country the ordinary rule of damages in trover would not apply, both because the judgment would not, as in actions for the conversion of goods, effect a transfer of the title to the defendant, and because the title of the plaintiff, if recorded, as is generally the case, would be unaffected by the conversion, .and if not recorded, the deed would still be unavailable to the defendant, .and the plaintiff can usually have redress in equity. Dixon, Ch. J., in delivering the opinion of the supreme court of Wisconsin, said: 'No case can be found, I think, where the recovery and satisfaction of .a judgment in an action for the conversion of them (title deeds) have been adjudged to pass the legal title. I should think that in those cases where the title is unaffected, and the conduct of the defendant has not been fraudulent or oppressive, but where the deed or other written instrument was lost or destroyed through his mistake, negligence, or slight omission, the more just rule of damages would be such .sum as would recompense the plaintiff for any actual loss he may have .sustained, and for his trouble and expenses in going into a court of — 465 — ■equity, or elsewhere, to establish aucl perpetuate the evidence of his title, with the costs of the action.’ “In England the case is different, since, owing to the absence of a registry system, the title deeds are the only evidence of title. The whole value of the land is therefore allowed to be recovered, but satisfaction of the judgment is entered on the roll, on the defendant delivering up the deeds and paying costs, as between attorney and client, and otherwise placing the plaintiff in as good a situation as before the ■cause of action arose.” See also Sutherland, Damages, 4th ed. § 1134. We are agreed that § 7180, Compiled Laws, has no application to executory contracts for the sale of land. Consequently, plaintiff has wholly failed to establish any facts upon which damages can be predicated under the laws of this state. The judgment appealed from is therefore reversed, and the cause remanded for further proceedings according to law.