(186 N.W.) 4. Criminal law 112(1)-Defendant taking order for C. O. D. shipment of liquor from another county may be prosecuted in county where order was taken. An order was taken at Warren for liquor to be shipped C. O. D. by a dealer in Minneapolis to a customer at Warren. There was no valid contract in the case. The transaction was void at every step and there was a furnishing of the liquor at Warren. 5. Criminal law 315-Proof that plaintiff distilled, fermented, spirituous, vinous or malt liquor or liquid of any kind potable as a beverage." Chapter 455, § 1, Laws 1919. When a liquid is described as "intoxicating liquor," in our opinion that signifies that it is "potable as a beverage." Liquor can intoxicate only when used as a beverage. [3] 3. Defendants contend that wine of pepsin is a medicine, not a liquor. As above stated, the state's proof is that it is simply was a manager at one date is not proof that sherry wine with an ingredient of pepsin that he was a manager at preceding date. Proof that a party was manager of a cor-. poration on February 28th has no tendency to prove that he was such manager on January 26th preceding. Appeal from District Court, Marshall County; Andrew Grindeland, Judge. Emil Friend was convicted of soliciting and receiving an order for intoxicating liquors, and Harry A. Brown was convicted of selling and disposing of the same liquor, and both appeal. Judgment affirmed as to the defendant Friend, and a new trial granted as to the defendant Brown. soon disappears. It is clearly a liquor and not a medicine. [4] 4. Defendant Brown contends that the sale in this case was made in Minneapolis and that if a crime was committed it was to be If this were a case of sale of goods that Geo. B. Leonard, of Minneapolis, for ap- could lawfully be sold, no doubt Minneapolis pellants. C. L. Hilton, Atty. Gen., Jas. E. Markham, Asst. Atty. Gen., and A. N. Eckstrom, Co. Atty., of Warren, for the State. HALLAM, J. Defendant Friend was convicted of the crime of soliciting and receiving an order for intoxicating liquors, to wit, wine of pepsin, at Warren, Marshall county, Minn. Defendant Brown was convicted of the crime of selling and disposing of the same liquor at Warren. Both appeal. [1] 1. It was clearly proved that defendant Friend solicited and received an order for 12 pint bottles of wine of pepsin at the time and place charged. It was also proved that wine of pepsin is essentially sherry wine and contains 22 per cent. alcohol, that the ingredient of pepsin is very small and soon be comes "inactive" or disappears. Defendants contend that whereas the indictment charged dealing in an intoxicating liquor, to wit, wine of pepsin, the proof pertained to dealing in sherry wine, and that the proof was therefore of an offense not charged in the indictment. The proof was of solicitation and sale of wine of pepsin and further that wine of pepsin is to all intents and purposes a disguised sherry wine. There was no variance. would be the place of sale. Where goods not specific are ordered by description and are to be shipped by seller to buyer, the sale takes place when goods answering the description are appropriated to the contract and appropriation is presumably complete when the seller delivers the goods to a carrier consigned to the buyer. The carrier is the agent of the buyer to accept delivery. The fact that the goods are sent C. O. D. does not change the rule. The Uniform Sales Act. Laws 1917, c. 465, § 19 (Gen. St. Supp. 1917, § 6015-19), settles this and such was always the law. Ammon v. Illinois C. R. Co., 120 Minn. 438, 139 N. W. 819; 10 C. J. 278, 279. But this was not a sale of goods that could lawfully be sold. It requires a contract to pass title before actual delivery. It requires a contract to constitute the carrier the agent of the buyer to accept delivery for the buyer. There was no real contract in this case. The transaction was void at every step. Whether any offense was committed before the liquor arrived at Warren we need not determine, but in our opinion there was a "furnishing" of liquor in Marshall county, and a "furnishing" is a "sale" within the meaning of the statute. Chapter 455, Laws 1919. [5] 5. As to defendant Brown there is, [2] 2. Contention is made that the in- however, one exception that is fatal to the dictments are faulty because there is no al- state's case. He is charged with the unlawful legation that wine of pepsin is "potable as a sale on the theory that he was manager of beverage." With this we do not agree. This the Minneapolis Beverage Company. If he allegation was held not indispensable in was such manager we are of the opinion that State v. Hosmer, 144 Minn. 342, 175 N. W. he might be liable criminally for sales made 683. The statute defines intoxicating liquor by the sales agents of the company. 23 Cyc. to include and mean "ethyl alcohol and any 257; State v. Mahoney, 23 Minn. 181; State For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes But v. Mueller, 38 Minn. 497, 38 N. W. 691. PER CURIAM. Statement. This is an action for the conversion of wheat. Judgment was entered for the plaintiff upon a special verdict. From such judgment the defendant has appealed. The following facts appear from the record: The plaintiff seeks recovery for wheat converted in September, 1909. This action was started January 26, 1914. The answer was served February 16, 1914. Notice of trial in Ward county was served July 13, 1914. Defendant left with As to defendant Brown a new trial is the clerk of the district court in Ward coungranted. As to defendant Friend the judg-ty, on July 18, 1914, an affidavit for change ment is affirmed. BURKE v. MINNEKOTA ELEVATOR CO. (Supreme Court of North Dakota. Jan. 25, 1922. Rehearing Denied Feb. 20, 1922.) (Syllabus by the Court.) 1. Dismissal and nonsuit 60(6)-Refusal to dismiss for failure to bring action to trial within 5 years held not error. of venue based on the prejudice of the judge and of the county. No papers had then been filed with the clerk, and the defendant states that the motion papers for a change of venue were left with the clerk to be filed immediately upon filing of plaintiff's papers. On the back of these papers is a statement by the clerk: "Case not filed up to date, January 6, 1917. Returned unfiled." Such motion papers were later filed with the clerk in Ward county November 2, 1918. Prior to that time the plaintiff, on November 9, 1917, had served a new notice of trial in Ward county and a note of issue. On December 18, 1918, the trial judge ordered the place of trial of the action to be transferred to Pierce county. The application and order changing the place of trial was made without notice to, or participation by, the plaintiff, as the trial judge subsequently found. On February 7, 1919, the complaint, notice of trial, note of issue (filed in the district court of Ward county, November 9, 1917), and the motion papers for change of venue, together with the order of the court, were filed with the clerk in Pierce county. The answer was not filed with the clerk in Pierce county until July 2, 1919, and apparently 3. Interest 68-Judgment for interest from not at all with the clerk in Ward county. date of conversion to date of verdict, where On May 24, 1919, the defendant prepared jury did not find plaintiff entitled to inter-motion papers for dismissal of the action est, held erroneous. In an action for conversion of wheat in 1909, where suit was instituted in January, 1914, and was not brought to trial until January, 1920, after a change of venue had been taken by the defendant, in December, 1918, from Ward county to Pierce county, it is held, for reasons stated in the opinion, that the trial court did not err in refusing to dismiss the action for failure to bring the same to trial within 5 years, pursuant to section 7598, Comp. Laws 1913. 2. Trover and conversion 40(6)-Verdict for conversion of wheat sustained. In such action, it is held, for reasons stated in the opinion, that the special verdict of the jury finds support in the evidence. In such action, where the conversion of wheat occurred in 1909, and a jury, by its special verdict, allowed the market price therefor existing at the time of such conversion without any finding that the plaintiff was entitled to interest upon such amount from the date of conversion, it is held, for reasons stated in the opinion, that the trial court erred, in its order for judgment, permitting plaintiff to recover interest for over 10 years upon the amount found by the jury. Robinson, J., dissenting. for failure to prosecute, pursuant to the provisions of section 7598, C. L. 1913. By stipulation of the parties, the hearing of this motion was continued from June 2, 1919, until June 30, 1919. On July 2, 1919, Hon. A. G. Burr, district judge, denied the motion. In an extensive memorandum opinion, he stated that neglect on the part of the plaintiff must appear; that it could not be considered neglect on plaintiff's part not to urge the case for trial between the time when defendant first left with the clerk motion papers for change of venue and the Appeal from District Court, Pierce Coun- time when the application therefor was ty; Buttz, Judge. granted; that the defendant took change of venue before the expiration of the 5-year period, and did not pay his filing fee and get the case on the Pierce county calendar until after the expiration of the five years; that after December, 1918, the delay occasioned was so occasioned by the defendant. In January, 1921, the action came to trial before (186 N.W.) Hon. C. W. Buttz, trial judge. The defendant bushels 30 pounds, and another person for again presented the motion for dismissal of the action for failure to prosecute, and again the motion was denied. the balance; that Myatt then owed the plaintiff $2,773.34. Upon this verdict, returned February 3, 1920, the trial judge, on February 10, 1920, ordered judgment for $490.60, with interest thereon at 6 per cent. from September 30, 1909. Judgment accordingly was entered May 7, 1921, for the total amount of $891.18. The defendant has specified 34 assignments of eror. In general, it contends that the trial court erred in not dismissing the action, pursuant to section 7598, C. L. 1913; that the trial court erroneously received oral testimony concerning ownership of the land; that the cropper's contract was improperly received in evidence; that the evidence of delivery of the grain is insufficient to warrant recovery; that the plaintiff failed to prove indebtedness owing by Myatt to him; that remarks of the court in the presence of the jury were prejudicial; that the market value of the grain was established without proper foundation; that the court erroneously gave general instructions in submitting the special verdict; that the court erroneously, in its order for judgment, permitted plaintiff to recover interest upon the verdict returned by the jury. At the trial the plaintiff gave testimony to the following effect: He owned one-half section of land about five miles from defendant's elevator at Sawyer. In 1909 the farm was operated under a cropper's contract with one Myatt. This contract reserved title in all crops in the plaintiff until division to secure and repay advances of the plaintiff and an indebtedness owing by Myatt to the plain- | tiff, stated in the contract to be $2,500 and interest. Between September 26 and 30, 1909, the wheat was threshed. At that time Myatt owed the plaintiff over $2,700. Prior to the time of threshing, the plaintiff notitied the agent of the defendant concerning his claims to the grain. At the time of threshing, the wheat was hauled direct from the machine, with the exception of two loads. The plaintiff kept track of the wagons as they left the machine, and was driving back and forth from the farm to the elevator. He testified that 1,546 bushels went to the defendant's elevator. Plaintiff had made a memorandum of the wheat delivered, which he secured from examining plaintiff's books. That at that time the agent told him he had [1] Decision. Upon review of the record we paid Myatt for the same number of bushels are of the opinion that the contentions of for which plaintiff was paid; that he showed the defendant are without merit, except as him the books where he had made that set- hereinafter noted. We are further of the tlement of the grain. He received payment opinion, upon this record, that the trial judge from the elevator for 557 bushels, 30 pounds. did not err in overruling defendant's motion This was No. 1. Nor. wheat and the price then to dismiss for neglect, for a period of 5 was 88 cents. The memorandum, on the sta- years after the commencement of the action, tionery of the defendant, shows 557 bushels, to bring the same to trial and to take pro30 pounds. After threshing was finished he ceedings for its final determination pursuant made demand from the defendant. The agent to section 7598, C. L. 1913. We in no manner of the defendant advised him that Myatt commend the delay in litigation evidenced got his cash ticket. Myatt left September in this record. It has been needless, and 30th, and the plaintiff has not seen him serves, in a manner, as a reproach to the since. The defendant's answer is in the na- administration of justice. Nevertheless, negture of a general denial. The former agent lect of the defendant must not be considered of the defendant at Sawyer did not testify, plaintiff's neglect. Apparently, much of the having gone, years ago, to British Columbia. delay occasioned in this action has arisen The superintendent of the defendant tes- through needless and improper, so termed, tified. He produced its books of business at legal sparring of the attorneys. The defendSawyer, its canceled checks and storage tick- ant could have avoided much of the delay ets for the year 1909 and beyond, but not if it had so desired. At any time after 10 the scale book, which was lost or taken. days from the time of the service of the sumThe evidence in these books tends to show mons and complaint, the defendant could that the defendant did not receive the grain have secured an order from the trial judge, as testified by the plaintiff, and that the without notice, requiring the same to be filed price of the grain, so received by the elevator within a specified time, or in default of ⚫ company, was paid to the plaintiff, excepting compliance, that the action be deemed abanone check of $86.25 for 98 bushels paid to doned. Section 7958, C. L. 1913. At any Myatt. The trial court, by reason of the time after issue was joined, the defendant delay in this action, refused to permit the could have placed the action upon the calplaintiff to recover a greater price for the endar for trial, by serving a notice of trial wheat than that existing at the time of the and filing a note of issue. Section 7610, C. conversion. The defendant requested a spe- L. 1913. As easily, in July, 1914, could the cial verdict. The jury, by its special ver- defendant have secured the consideration and dict, found that defendant received 1,115 determination of the trial court upon its bushels of wheat; that the price then was application for change of venue, as it did, 88 cents; that it paid plaintiff for 557 in December, 1918. It deemed it expedient 1 to wait, and it did wait until November, 1918., September 30, 1909. On a special verdict the The 5-year period of time had not then elaps- plaintiff recovered a judgment against deed since the institution of the action. It fendant for the value of 5571⁄2 bushels of then delayed securing the change of venue, wheat at 88 cents a bushel, being $190.60. which apparently was made ex parte without The interest and costs made it $891.18. The notice to the plaintiff, from November, 1918, verdict is dated February 3, 1921. until February 2, 1919, when the transfer was made to Pierce county. The defendant was securing the transfer, and it was his duty to see that it was made and the necessary prerequisite fees paid to the clerk to whom the case was transferred. Sections 3499-3548, C. L. 1913. Under all the circumstances we are not inclined to disturb the findings of the trial court that there was not an unreasonable neglect or a prima facie neglect on the part of the plaintiff whica should cause dismissal under the statute. Section 7598, C. L. 1913. See Lambert v. Brown, 22 N. D. 107, 132 N. W. 781; Donovan v. Jordan, 25 N. D. 617, 142 N. W. 42; Miller Co. v. Minckler, 30 N. D. 360, 152 N. W. 664. [2, 3] The evidence submitted was sufficient to sustain the special findings of the jury. We are of the opinion, however, that the trial court erred in permitting the plaintiff to recover interest upon the verdict returned by the jury. The issue of interest was not submitted to the jury. Previously the trial court had refused the plaintiff the right to recover the highest price for wheat existing between the time of the conversion and the time of the trial by reason of the delay in this action. Upon the record, it was improper for the trial court, as a matter of law, to award interest to the plaintiff. Section 7143, C. L. 1913; Johnson v. Nor. Pac. Ry. Co., 1 N. D. 354, 364, 48 N. W. 227; Ell v. Nor. Pac. Ry. Co., 1 N. D. 336, 353, 48 N. W. 222, 12 L. R. A. 97, 26 Am. St. Rep. 621; Seckerson v. Sinclair, 24 N. D. 625, 638, 140 N. W. 246. The plaintiff is not in a position to complain because the question of interest was not submitted to the jury as a question of fact. Accordingly, the order for judgment should permit recovery of the plaintiff in the sum of $490.60, with the interest thereon at 6 per cent from the date of the verdict. It is ordered that judgment be entered accordingly, without costs to either party upon this appeal. 1 GRACE, C. J. (specially concurring). am of the opinion that the trial court did not err in overruling defendant's motion to dismiss the action. In my opinion the defendant failed to show that the plaintiff took no action to bring the case to trial within the 5-year period specified in section 7598, C. L. 1913. I am also of the opinion that the evidence was sufficient to sustain the special finding of the jury, and that the judgment as modified should be affirmed. ROBINSON, J. (dissenting). This is an action for the conversion of wheat recovered on Defendant made two motions to dismiss the action because it was not brought to trial in 5 years. The motions were under the statute, which is, in effect, that when a party neglects or fails for 5 years to bring an action to trial, it is deemed to be dismissed and abandoned, and the court shall make an order dismising the action. Code, § 7958. Here is the chronology of the case: November 2, 1908. Cropper's lease by plaintiff for 1909. September 30, 1909. Alleged conversion of cropper's share of wheat. January 26, 1914. Action commenced. November 9, 1917. After the lapse of 3 years and 9 months, complaint filed. June 30, 1919. Five years and 5 months after the action was commenced, first motion was made to dismiss. June 19, 1921. Second motion to dismiss. February 2, 1921. Date of trial, which was 7 years after the commencement of the action. There is no claim that defendant stipulated or in any way consented to a continuance of the action. It it true that on December 9, 1918, defendant obtained an order changing the place of trial from Ward county to Pierce county, and it is claimed that he thereby delayed the trial, but there was a lapse of 4 years and 10 months from the commencement of the action until the change of venue. The statute is peremptory. It is that an action shall be dismissed for a neglect or failure to bring it to trial within 5 years. The court has held the statute to be analogous to an ordinary statute of limitations; that it is a statute of repose; also, that an inexcusable delay during 3 of the 5 years would warrant a dismissal under the statute. Miller v. Minckler, 30 N. D. 367, 152 N. W. 664. In his brief, on page 6, counsel for plaintiff says: "The first motion to dismiss was made before the 5-year period had expired." That is not true, because the action was commenced by personal service of the summons and complaint on January 26, 1914, and the first motion to dismiss was on June 2, 1919, and to accommodate counsel for plaintiff, it was continued until June 30, 1919. That was 5 years and 5 months after the commencement of the action. Then it is said: the 5-year period, so plaintiff brought the action for trial at the first opportunity." "The next term of court was reached after Doubtless counsel means the first opportunity after the first motion to dismiss, but not the first, the second, nor the third op (186 N.W.) portunity during the first 5 years. Then he says: PALMER v. BAKER et al. (No. 4999.) "Proceedings were on for a trial of the ac- (Supreme Court of South Dakota. tion when the motion to dismiss was renewed." But the second motion was made on Jan-1. uary 19, 1921, and the trial was on February 2, 1921, 7 years after the commencement of the action, and nearly 11 years after the cause of action accrued. If the 5-year limitation statute does not apply in this case, then it is a practical nullity. The wheat was grown under a cropper's lease dated November 2, 1908, acknowledged by the lessor, but not by the lessee, and recorded in the office of the register of deeds in August, 1909. The land described is 80 acres of N. W. 31, and 242 acres in N. W. of 32, 153, 81. The lease was in the nature of a chattel mortgage on all the crops to secure an estimated debt of $2,500 and interest. It should have been filed and indexed as a chattel mortgage. The record was not notice to the defendant. Wheat is grown to be sold. Croppers are poor, and must sell their share promptly after threshing to pay labor, liens, expenses, and chattel mortgages. Hence the time for a lessor to look after his interest in crops is immediately after the threshing, and not after the lapse of nearly 4 years. And when an action is commenced against an elevator company to make it pay a second time for grain purchased and paid for in good faith, there are good reasons against delay in the prosecution of the action. It is well known that croppers and elevator agents are of a movable class. They are here this year and away next year. They are gone and not to be found. In the course of 5 or 10 years some die, some remove to parts unknown, and some forget about matters in which they have no interest. In such a case if the plaintiff may delay the commencement of an action for 4 years and then delay the trial for 7 years, defendant will be at his mercy, because he may then safely testify to anything to win his case. Of course the presumption is that every man is honest and truthful, but the policy of the law is not to lead men into temptation. The plaintiff does not present an appeal to equity. At about the date of making the cropping contract he took from the cropper a chattel mortgage on his whole farming outfit, 12 horses, farm machinery, and such like, worth probably $3,000, to secure $1,754, and in October, 1909, he foreclosed the mortgage and sold all of the property to himself for $1,863, charging an attorney's fee, $75. Was it a wonder that the cropper ran off and quit the country? There is no occasion for considering the alleged errors. For the failure to move or bring the case to trial within 5 years, the judgment should be reversed, and the action dismissed. 1922.) Feb. 16, Appeal and error 385(2)-Appellant is not required to sign appeal bond. The statute requiring a bond on appeal (Rev. Code 1919, § 3150), the sureties on which are called bail in section 1472, and their obligations defined by section 1473, is not one which the principal is required to execute. 2. Appeal and error 1244-Bonds 54Party on whose behalf bond is executed did not become jointly liable by executing it. Where the statute does not require the party on whose behalf a bond is executed to join in executing the bond, the presumption created by Rev. Code 1919, § 725, that an obligumed to be joint and several, does not apply gation imposed upon several persons is preand the fact that the benefited party joins in the execution of the bond does not make him jointly liable thereon so that he must be sued with the sureties; and where the complaint against sureties on an appeal bond showed that appellant who had joined therein was not required by law to do so, it was not necessary that he be joined as a party. Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge. Action by A. W. Palmer against W. L. Baker and another. From an order overruling demurrer to the complaint, the defendants appeal. Affirmed. Kirby, Kirby & Kirby, of Sioux Falls, for appellants. W. F. Bruell, of Redfield, for respondent. WHITING, J. Action to recover upon appeal bond for costs given, upon an appeal from the circuit to the Supreme Court (Palmer v. Bratager, 41 S. D. 649, 172 N. W. 507), in an appeal wherein the present plaintiff was respondent and one Bratager was appellant. The bond was executed by such appellant and two sureties. This action is brought against the sureties only. Defendants demurred to the complaint upon the grounds: That the same did not state facts sufficient to constitute a cause of action; and that there is a defect of parties defendant. This demurrer was overruled; and the defendants appealed from the order overruling the demurrer. That the complaint states a cause of action is so clear as to need no discussion. Is there a defect of parties defendant? As above noted, the bond was executed, not only by present appellants as sureties, but by their principal, Bratager. The sole question thus presented is, Should Bratager, the principal in such bond, have been joined as a defendant in the action upon the bond? If the bond in question is a joint bond-that is, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |