Kimball v. Swenson

NOURSE, J.

This is an appeal from judgment after verdict in favor of plaintiff for $1,677.50 as damages for the conversion of twenty-five tons of corn. The facts material to the opinion are that for some time prior to May 23, 1918, Plenry P. Pierce, Lyda N. Swenson, and N. L. Pierce were partners for the purpose of raising a crop of com planted by them on the Bradley ranch, in Contra Costa County. On the said day while the corn was planted, but not yet harvested, one of the partners, Henry P. Pierce, entered into an agreement in writing to sell to the plaintiff twenty-five tons of the com from said crop for $1,000. This agreement was made with the knowledge and consent of the two other partners, and payments were made in accordance with its terms to the said Henry P. Pierce. The final payment was made by check mailed by the plaintiff from some place in Texas. A few weeks after the payment was- made plaintiff met Henry P. Pierce and asked him if the check had been received. Pierce replied in the affirmative and told plaintiff then that “the com was his.” Thereafter and in the month of January, 1919, plaintiff asked the said Pierce about the com he had purchased and Pierce replied that it would not be advisable to shell it at that time, as there was .a good deal of wet corn in the market and it would be better to let this corn stand awhile. Again, in March of the same year, similar inquiry was made. During this time the com was in the cribs on the ranch but had not yet been shelled nor had plaintiff’s portion been segregated. On December 26, 1918, the defendant Swenson, desiring to raise additional funds for the harvesting of the com, entered into an agreement with Henry P. Pierce whereby the said Pierce sold to the defendant Swenson all his interest in the com crop remaining over and above the twenty-five tons of corn belonging to E. B. Kimball. In this agreement the defendant Swenson expressly agreed that the plaintiff was the owner of the twenty-five tons of com and that he was entitled to have the same delivered to him in the manner provided in the written agreement made between him and Henry P. Pierce on the twenty-third day of May, 1918. The com was shelled

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in the latter part of May, 1919, and on the 6th of June of the same year the defendants Swenson and N. L. Pierce delivered the entire crop, consisting of seventy and one-half tons, and including that belonging to plaintiff, to the defendant C. S. Webber. This delivery was accompanied by a bill of sale in which a consideration of $4,200 was recited. It was, however, admitted by the parties concerned that no consideration passed for the transfer, but that the defendant Webber took possession of the com at the instance and request of Mrs. Swenson and with the consent of the remaining partner, N. L. Pierce, for the purpose of disposing of the entire crop and paying off certain creditors. At the time the transfer was made it is claimed that a list of these creditors was presented to the defendant Webber by Mrs. Swenson. It is admitted, however, that in any list so presented the claim of plaintiff was not included. 'Soon after the transfer to Webber was made he shipped the entire crop to a warehouse in the city of Stockton, where he caused it to be sold for $68.50 a ton, which was $28.50 a ton in excess of the price paid by Kimball for the twenty-five tons purchased by him. At the time of the trial he still retained the proceeds of this sale. Prior to the trial and prior to the time of the sale demand was made upon both the defendants Swenson and Webber for the' delivery of the twenty-five tons belonging to plaintiff. In answer to the demand made upon him the defendant Webber replied that he could not make delivery without the consent of Mrs. Swenson, and in answer to the demand made upon her Mrs. Swenson replied that she would not make delivery because the com crop had been much smaller than they had anticipated. Neither of the defendants at the time demand was made upon them denied plaintiff’s title. Upon the stand the defendant Webber disclaimed any interest as to any portion of the corn except as to his claim as one of the creditors of the partnership, while the defendant Swenson not only expressly confirmed plaintiff’s title by the paper dated December 26, 1918, but admitted his ownership while on the stand.