Underwood v. Atlantic Elevator Co.

69 N.W. 185, 6 N.D. 274, 1896 N.D. LEXIS 16

• Court: North Dakota Supreme Court
• Decided: November 21, 1896
• Status: Published

Opinion

Corliss, J.

Plaintiffs are chattel mortgagees of a crop of wheat. As such mortgagees, they have sued the defendant for the conversion of the wheat covered by their mortgage. The ownership of the wheat by the mortgagor is not in dispute. Nor can we discover any issue as to the execution of the mortgage. This fact is admitted by the answer, when construed as a whole. Therefore we are not called upon to settle the very interesting question of evidence discussed by appellant’s counsel relating to the proof of instruments without calling a subscribing witness who is living within the jurisdiction of the court. There is sufficient evidence to warrant a finding that the amount of wheat covered by the mortgage was 800 bushels, and that all of this grain was- drawn to defendant’s elevator, and by it sold and shipped out of the state. In addition to this, a demand was proved. There was therefore ample evidence of conversion. While it is possible that incompetent evidence relating to the value of the wheat was received, yet the error, if any, was without prejudice, for the reason that the verdict was for only $142.08; and it is too clear for discussion that the competent evidence in the case would compel a finding by the jury that the grain was worth at least 20 cents a bushel. As defendant was proven to have converted 800 bushels of wheat on which plaintiff had a mortgage lien, and as the amount of the verdict could be sustained even on the theory that the wheat was worth not to exceed 20 cents a bushel, we cannot discover how the defendant has suffered any prejudice from the admission of the incompetent evidence relating to value.

(69 N. W. Rep. 185.)

The judgment of the District Court is affirmed.

All concur.