Davis v. McNear

McFarland, J.— This action was brought by E. C. Vancil against the defendants, McNear, and E. W. [607]Pierce and L. H. Day, to recover the value of certain wheat alleged to have been the property of Vancil and to have been wrongfully converted by said defendants. A certain corporation, called the Farmers’ Co-operative Union, was also made a defendant; but as to it the action was dismissed. The jury found a verdict in favor of plaintiff for two thousand four hundred and sixty-four dollars and forty-eight cents, against Pierce and Day; but they found in favor of defendant, McNear. Plaintiff appeals from an order denying a motion for a new trial.

There is a good deal of testimony in the record, and it appears in a disjointed way, so that it is rather hard to follow. Witnesses were frequently recalled; the testimony of one witness was frequently interrupted by the interjection into it of the testimony of another; and the evidence of each party was introduced at several different times during the trial. -Respondents have filed no points or brief, and therefore give us no aid in examining the tangled mass. But upon examination of the record we see no reason for granting a new trial.

Defendants Pierce and Day owned a warehouse in which they stored wheat of others, and also conducted the business of buying and selling wheat. Defendant McNear bought of them certain wheat, and paid them for it; and it is clear that the purchase of the wheat by McNear was a bona fide transaction on his part, and done under his belief that the wheat so purchased was owned by Pierce and Day. It was contended, however, hy plaintiff, that this wheat purchased by McNear was the identical wheat raised on certain ranches of plaintiff, called the Oswalt and Clark ranches, and that it was merely stored with Pierce and Day, and not sold to them. On the other hand it was contended by defendant's that this wheat was sold by plaintiff to Pierce and Day, and that the latter had full title to it when they sold it to McNear; and the main question of fact in the case was whether the wheat had been sold to Pierce and Day by plaintiff. And upon this point there was ample [608]evidence to warrant the jury in finding that Pierce and Day were the owners of the wheat. Indeed, it was proved beyond controversy that plaintiff made a written sale of the wheat to Pierce and Day, and received a large part of the purchase money, although he contends that he afterwards canceled the sale, for certain reasons, after a large part of it had been delivered. But, as to this matter, as well as to all matters concerning said sale, there was, to say the least, a material conflict of evidence. Therefore, plaintiff’s contention that the evidence was not sufficient to sustain the verdict cannot be maintained.