Grabau v. Nurnberg

166 N.W. 508, 39 N.D. 57, 1917 N.D. LEXIS 139

• Court: North Dakota Supreme Court
• Decided: December 14, 1917
• Status: Published

Opinions

Birdzull, J.

This is an appeal from a judgment entered by the district court of Stutsman county in an action for an accounting. The facts are as follows:

During the years 1911 and 1915 the plaintiff farmed certain land owned by the defendant. His lease was in the form commonly called a cropper’s contract, in which the title to the crops was reserved in the defendant until settlement. There was very little crop grown on the land in 1914, and by reason of this fact, together with the poor quality of that which was grown, no grain was marketed, except a small quantity of wheat. Plaintiff bought the defendant’s share of the oats and speltz. The defendant sold the wheat, amounting to about $03, and retained the money. In the year 1915, the crops consisted of wheat, barley, oats, and speltz, which the defendant received and sold, retaining the proceeds. During this time, the defendant had a store in Jamestown, at which the plaintiff ran an account. Defendant also advanced to the plaintiff sums of money at various times. The defendant owned a threshing machine in 1915, which the plaintiff operated for him for a short period. When the parties undertook to settle in the fall of 1915, they could not reach an agreement. Several conferences were held, at some of which the parties and their attorneys were pres ent, but no satisfactory settlement was concluded. Whereupon plaintiff brought this action for an accounting. The action resulted in a judgment in favor of the plaintiff for $995.66, with interest at 6 per cent from November 1, 1915, and costs. The items of account, as found by the trial court and upon which the judgment is based, are as follows:

“The court finds that the defendant sold the entire wheat and barley crop raised on said land under said contract in the season of 1915, and received therefor the following amounts: For the wheat crop, the sum of $1,980.80; and for the barley crop, the sum of $2,785.55, — making a total sum received by the defendant for the entire wheat and barley crops of 1915 of $4,766.35. That the defendant now retains the entire amount last named.

“The court finds that the plaintiff is entitled to the following credits in addition to the above, to wit:

Twelve days’ services in charge of defendant’s threshing, outfit in the season of 1915, at $10 per day .................................... $ 120.00

For hauling the defendant’s threshing' outfit to his farm............ 15.00

For teams and wagons in threshing season of 1915, furnished to defendant, at deft, request ............................................. 78.75

One half of 125 bushels of oats used for feed by defendant in threshing season of 1915, at 50 cents per bushel............................. 31.25

Plaintiff’s total credits $2,628.17

That there should be deducted from the above sum of plaintiff’s-credits, $2,628.17, the following credits due to the defendant, to wit:-

609 bushels of oats at 50 cents per bu............................... $ 304.50

Interest on this sum at 10 per cent, from Jan. 1, 1915, to Nov. 1...... 25.40-

400 bus. speltz at 50 cents per bu................................... 200.00'

Interest on above sum at 10 per cent from Jan. 1, 1915, to Nov. 1...... 16.17.

Money paid Klingman .............................................. 48.25-

Money paid Walters ................................................ 4.95

Money paid Padden ...........................'.................... 62.00'

Note dated March 19, 1915, for $110, with interest at 10 per cent to Nov. 1, 1915 ......................................................... 116.78'

Fletcher’s thresh, bill for threshing wheat, 1915 crop .................. 130.30'

Threshing speltz, 1915 ...................................,........ 50.09-

Threshing barley, 1915 ............................................. 222.60

Threshing oats, 1915 .............................................. 46.62

Plaintiff’s account at defendant’s store ....................;......... 130.05'

Interest on above, October 23, 1915, at 10 per cent to Nov. 1............ .30'

Agreed price under contract for pasture for 1915.................... 150.00'

Agreed price for potato and millet land for 1914....................... 34.00'

For the use of the land included by plaintiff in the pasture, and designated in the evidence as “the flat” for the year 1915, on the basis of its value for pasture land, the defendant should be allowed the sum of.... 100.00»

The court finds from the evidence that, until this action was commenced by the plaintiff, that the defendant asked only $100 for the use of this flat for the two years, 1914 and 1915. The court finds that as early as July, 1914, the defendant knew that this land designated as the flat was fenced in by the plaintiff as a part of the pasture land, and that defendant made no objection to this land being so used. And that the land designated as the flat, and fenced in as pasture by the plaintiff, is in fact land that is of poor quality, and land best adapted to grazing purposes. That only a small part of said tract had ever been broken, prior to the year 1915, and that at the time the plaintiff took possession of said farm, this tract had gone back to

“Total credits due to defendant . . . . . . . . . . . . . . .$1,632.51

“That there should be deducted from plaintiff’s total credits, mentioned in paragraph five (5) herein, the defendant’s total credits, -as set forth, above, which leaves the balance due to the plaintiff herein, $995.66.”

The appellant argues eighteen assignments of error, some of which are so obviously without merit that a discussion of them could serve no-useful purpose. We will, therefore, confine our discussion to the main propositions advanced by the appellant.

It is first contended that this action should not have been tried by the trial judge who tried it, for the reason that an affidavit of prejudice-was filed. Section 7644, Comp. Laws, 1913, provides that, upon the filing of an affidavit of prejudice before the opening of the term, the presiding judge shall proceed no further with the case. The time for the opening of the term in which the action was to be tried was June 19th. On this day the court convened at 9:30 a. m., and took up certain citizenship matters and entered a minute order continuing motions,, demurrers, and other pending matters until July 10th at 10 a. m. On the same day a jury was called for the term which was thus continued to-July 10th. The affidavit of prejudice was filed in this case on July 8th, and it was disregarded by the court .for the reason that it was not filed in time. While the statute giving to suitors the right to file an. affidavit of prejudice makes it the mandatory duty of the court to refrain from further proceedings and to call in another judge, it also fixes, definitely the time for the filing of such affidavits as being before the opening of the term. We are of the opinion that a term is begun, within the meaning of this statute, on the day fixed by law for the convening-of the term. If the term is adjourned to a later date, such adjournment does not fix a new date for the opening of the term, but only operates to suspend for a definite interim the proceedings that may be had within the term that has already opened.

It is next contended that the court erred in refusing to sustain an objection to the introduction of evidence, on the ground that the complaint failed to state a cause of action for accounting. In support of this contention, the appellant relies upon the doctrine that equity will not assume jurisdiction of any controversy where a money judgment is sought, merely upon the grounds that the transactions between the-parties are numerous and involve matters of set-off. We are of the opinion, however, that the complaint states a cause of action properly cognizable in equity. It alleges that plaintiff farmed the land two years. and produced crops; that the amount of the crops is unknown to the plaintiff and known to the defendant, -who had actually received the same and the proceeds thereof; and it admits that the plaintiff was indebted to the defendant on account of advances made by the defendant, of which the plaintiff had kept no account but of which the defendant had a record. So, not only were the items numerous and somewhat complicated, but the defendant was in a position superior to that of the plaintiff with regard to the knowledge of the transactions involved. Furthermore, under the contract in question, the defendant must be held to have received the plaintiff’s portion of the crops as security merely, and, having received them in this capacity, is bound to account to the plaintiff as a fiduciary. See Pom. Eq. Jur. § 1421.

It is contended that a finding of the court relative to the rental value of certain lands designated as “the flat” can only be supported by incompetent evidence. The testimony referred to as being incompetent is in the nature of admissions which were made during the progress of the negotiations looking toward a settlement of the controversy. It is true, as, contended, that an unaccepted offer of compromise should not be received in evidence as an admission; but it is also true that where, as here, during negotiations looking toward a compromise, one of the parties makes a definite statement relative to independent facts, such statement is admissible regardless of the fact that it was made during the negotiations. See 16 Cyc. 950.

When the evidence is examined in the light of the rule as thus properly qualified, there can be little question but what it supports the finding of the court.

As to the remaining assigmnents, they are not of sufficient merit to warrant attention. The record discloses that a fair trial vras had, and that it resulted in an accounting as just, if not more so, than could be awarded by this court upon the cold record, no matter how painstaking our efforts might be. We find nothing in the record which would warrant us in disturbing the judgment or in granting a new trial. The judgment of the trial court is affirmed.