Page:North Dakota Reports (vol. 2).pdf/37

 Nichols v. Bruns, (Dak.) 37 N. W. Rep. 753. Section 5094, Comp. Laws, also indicates that a bill of exceptions not used on a motion for a new trial may be used on appeal from a final judgment. Respondent cites Reed v. Bernal, 40 Cal. 628. The case is not in point. It simply holds that the supreme court of California will not examine the evidence to see whether the findings of fact are supported by the evidence without a motion for a new trial. In the case at bar the errors assigned are errors of law. See authorities, supra. When the rulings were made which are assigned as error in this court no findings of fact had been made in the trial court. Darst v. Rush, 14 Cal. 83; Sullivan v. Cary, 17 Cal. 85.

The more serious question arises from the non-demand of the wheat before the action was brought. Respondent's counsel contend that no demand was necessary, first, because, as he claims, the answer, by its general denial, shows that a demand would be unavailing. We cannot so construe the answer. It alleges neither title nor right of adverse possession in the defendant. It simply puts the plaintiff upon his proofs. Plaintiff alleges that the property is covered by his chattel mortgage, and that the defendant has unlawfully converted it, and has refused to deliver it after demand. The issue joined by the answer only puts the plaintiff upon his proof as to the allegations of the complaint. The answer pleads no right in the defendant adverse to the rights of a mortgagee under a chattel mortgage. Nor does the evidence show that the defendant the elevator company has at any time assumed absolute dominion over the property as against plaintiff, or has done any act inimical to the rights of the plaintiff as a mortgagee, unless the purchase is inimical. But counsel argue that no demand was necessary, because, as they claim, the conceded facts show a conversion by the elevator company before suit commenced. It is true that no demand before suit would be necessary if the elevator company had, before suit brought, done any act with respect to the grain inconsistent with plaintiff's rights as a mortgagee. Counsel cite Phillip Best Brewing Co. v. Pillsbury & H. El. Co., 5 Dak. 62, 37 N. W. Rep. 763, and Nichols v. Barnes, 3 Dak. 148, 14 N. W. Rep. 110. But these cases are not in point, because