Page:North Dakota Reports (vol. 2).pdf/34

 A. C. Davis, for appellant. Rourke & Allen and Goodwin & Van Pelt, for respondent.

Action for value of wheat, alleged to have been converted by defendant. Judgment for plaintiff. Reversed and new trial ordered.

The opinion of the court was delivered by

WALLIN, J. This is an action to recover the value of certain wheat covered by plaintiff's chattel mortgage. The complaint charges in effect that plaintiff is the mortgagee and owner of a chattel mortgage executed by one Carl Kruger and wife, and covering the grain in question; that the mortgage was duly filed in the office of the register of deeds of Ransom county, in which the wheat was raised, and in which all the transactions in question occurred; and also "that, while said mortgage remained in force and unsatisfied, and on or about the 3d day of October, 1889, the defendants wrongfully and unlawfully took possession of the whole of said one hundred and ninety-four bushels of wheat, and wrongfully and unlawfully converted the same to their own use." The complaint further charges, in substance, that the defendants unlawfully detain the wheat in Ransom county, and "that said plaintiff has caused to be demanded of said defendants, of each and both of them, the delivery and possession thereof, before the commencement of this action; but said defendants refused, and still refuse and neglect, to deliver the same, or any part thereof, to the plaintiff." Judgment is demanded for the value of the wheat and interest, but not for a return of the property. After admitting that the defendant is a corporation, the defendant the elevator company answers as follows: “And, further answering, the defendant denies any knowledge or information of the allegations of the complaint (except as above admitted) sufficient to form a belief." At the trial the execution, delivery, and filing of the chattel mortgage were shown, and that the debt secured by it was due and unpaid. The evidence relied upon to show con- version is epitomized as follows: "That on the 3d day of October, 1899, the mortgagors delivered to the defendant the Duluth & Dakota Elevator Co., one hundred and ninety-four