Bentler ex rel. Gunderson v. Brynjolfson

Grace, J. This action is one of claim and delivery for the recovery of possession of certain personal property, or, in the event possession thereof cannot be had, for judgment for the value thereof. The complaint is in the ordinary form, and among other things alleges the right to possession of 936 bushels of oats and 663 bushels of barley, grown and raised upon the west half of section 21, township 158, range 73, Pierce county, North Dakota, for the season of 1914. The answer is a general denial, and the further allegation that the value of the property described in the complaint is $1,430. The facts in the case are substantially as follows: On the 23d day of September, 1909, the plaintiffs were the owners of the west half of section 21, township 158, range 73, Pierce county, North Dakota. On the 23d day of September, 1909, the plaintiffs agreed to sell said premises to the defendant for the sum of $12,800, and, in pursuance of such agreement, executed and delivered to the defendant a contract for deed of said premises. The defendant agreed to pay the purchase price of such premises at the times and in the manner as follows: $3,800 on or before December 1, 1910; $3,000 on or before December 1, 1911; $3,000 on or before December 1, 1912; and $3,000 on or before December 1, 1913, — with interest at the rate of 7 per cent per annum, payable annually, on the whole sum' remaining from time to time unpaid. He made the-following payments upon such contract: Paid on principal December 1, 1910, $1,800; paid interest until December 1, 1910, $1,060.26; January, 1912, defendant paid $1,000; December, [407] 1912, defendant paid $2,000. These payments were the only payments made upon such contract. The contract for deed is in the ordinary and customary form of such contracts, with the exception that it contains the following provision: “It is mutually agreed that, until the payment each year of the payment due each year hereunder to the said first parties, the legal title to, and the possession of, all grains grown upon said land during that year shall be and remain in the first parties as owners thereof.” The main question presented is the interpretation of the contract and the intention and effect of the clause therein contained and above quoted, and the further question of the correctness of the court’s ruling on defendant’s offer of proof as to the identity of the property; to the solution of which questions we will direct our attention. Appellant claims that the crops were to be security for the payment due the year the crop was grown, and nothing more, and that therefore this contract made no provision for the 1914 crop. Plaintiff claims that, under the stipulation above quoted, the crop during each year was held as security for the entire sum due on the contract. The contract in question remained in full force and effect up to December, 1914. It was not canceled, and remained effective as a contract for deed until the time stated. To us there appears no ambiguity in the contract. Prom the contract it is 'easy to ascertain the intentions of the parties. It is clear that the clause in the contract, above quoted, concerning the title and possession of the grain grown upon said land, was intended as security for the payments to be made upon such contract and was in the nature of a chattel-mortgage lien upon defendant’s interest in the crops to be raised upon said land to secure the payments to be made, as specified by the contract itself, and in accordance with all the terms and conditions of such contract. A further provision in such contract is as follows: “And in case of the failure of the said party of the second part (defendant) to make either of the payments, or interest thereon, or any part thereof, or perform any of the covenants on his part hereby made and entered into, then the whole of said payments and interest shall become immediately due and payable.” [408] An inspection of the testimony discloses that the defendant failed to-mate all the payment dne December 1, 1910. He paid only $1,800 on the principal and $1,060.26, which paid interest up to December 1, 1910. He was thus short in his payment due December 1, 1910, the sum of $2,000. Under the terms of the contract the balance of the purchase price and interest, if any, became immediately due and payable by reason of such default, and would all remain due and payable until such time as such default was removed by sufficient payments. Defendant was in default in his payments each year to the extent that he had failed to pay all the payments due in each year, together with all interest remaining due from time to time on the whole sum. By reason of such default the whole sum was due and payable. If the defendant had at any time paid any amounts sufficient to equal the amount which he was in default, then the default would be cured and the whole sum would not be due each year, but such sums only as were specified in the contract, together with the interest. The default in the payments continued during all the time of the contract from December 1,1910, up to the fall of 1914, and therefore, each year, from 1910, the whole purchase price of such land remained due and payable by reason of such default, and the balance of the purchase price which remained unpaid, with interest thereon, continued to be due in 1914, which balance of the purchase price and interest was in fact the payment which was due or remained due in 1914, and the defendant’s share of the crop on said land for 1914 must be held to be, and was, security for the payment of such balance of purchase price and interest so remaining unpaid. The plain intention of the security clause on the crop was to secure all that was due upon the contract in any year. We are quite clear that the plaintiffs in this case are entitled to be adjudged to have security on such half of the crop for the year 1914, not only by the plain intention of the terms of the contract, but also by reason of the special agreement or contract brought about by the correspondence between plaintiffs and defendant, and especially by reason of the contents of “exhibit 8.” It is clear from what we have said that the plaintiffs have a lien on, and are entitled to the possession of, one half of the grain raised upon the east half of section 21, township 158, range 73, Pierce county, [409] North Dakota, for the year 1914, or, in the event they cannot get possession of snch grain, or possession could not. be delivered to them, the plaintiffs would then be entitled to judgment for the market value thereof. In this proceeding the sheriff did take possession of certain grain, the same being in kind and quantity as follows: 936 bushels of oats, and 487 bushels of barley. Defendant maintains that such oats and barley were not raised upon the east half of section 21, above described, but upon other land belonging to the defendant, in the crops upon which plaintiffs had no claim, interest, or lien. The defendant, for his answer in this case, interposed a general denial to plaintiffs’ complaint, and thus put in issue every material allegation in the complaint, which includes the title and right of possession, which must also include unlawful detention; the sheriff in this case having in connection with the proceedings served the writ of claim and delivery and taken certain grain into his possession by virtue thereof, which grain so taken by the sheriff we shall subsequently fully show was claimed to be the same grain which was grown upon the land described in the complaint for the year 1914. There is, however, a further question in this case. This question has reference to the exclusion of testimony tending to show the grain taken by the sheriff was not the grain grown upon the premises described in the complaint. It is held, the exclusion of such testimony, and offer of such testimony, is reversible error, for which a new trial ought to be granted. The allegations of the complaint as originally drawn only went to the question of ownership and right of possession of the grain grown upon the premises in question. If the writ of claim and delivery had not been procured, there would have been no other issues; but when the plaintiffs procured the writ and took possession of the property, and at the trial introduced testimony tending to show that the grain so taken was the grain grown upon the premises in question, the issues of the case became materially broadened; and while the answer in its original state may not have been sufficient under which the defendant could show what he attempted and offered to show, nevertheless, when the issues had been broadened by the plaintiff and testimony introduced on such issues as broadened, the defendant could not be precluded from introducing testimony which tended to disprove evidence relating to the issues as broadened. For instance, the plain [410] tiffs introduced “exhibit 14,” which was the sheriff’s return on the writ of claim and delivery. Such return shows that the sheriff took into his possession certain grain, which was the same grain described in the affidavit, and the affidavit necessarily described the same grain which is in controversy in the complaint. The plaintiff thus introduced evidence tending to show that the grain taken by the sheriff was the same grain as grown upon the premises in question for the .year 1914. If the defendant could show by competent testimony that the grain taken by the sheriff for the plaintiffs and afterwards delivered to the plaintiffs was not the grain grown upon the premises described in the complaint, he should have been allowed to do so. The judgment of the trial court is reversed, and the case is remanded to the District Court for a new trial.