This is an action in conversion. The original complaint set forth two causes of action, alleging the conversion of durum wheat on April 25, 1932 and the conversion of No. 2 and No. 3 dark northern wheat on July 14, 1933. In the prayer for relief judgment was demanded for the value of the grain on these dates with interest.
The prayer for relief was amended and then plaintiff asked for the highest market value of the dark northern grain between the 14th day of July, 1933 and the date of trial.
The court also permitted the plaintiff to prove a special value for the durum wheat under the theory that he could show its value for seed, but we held on appeal (66 N.D. 54, 262 N.W. 242) that this was error as he had not alleged any special value for the durum "and under the pleadings he is entitled to recover the market price only. He was permitted to show the value of No. 1 durum for seed, but there is no allegation in the complaint under which he could recover a special value for the seed." On the appeal we ordered a new trial on all of the issues except that of the defendant's counterclaim.
The case was again tried to the court without a jury; findings of fact and conclusions of law favorable to the defendant were made and judgment *Page 441 entered dismissing the action. Plaintiff appeals demanding a trial de novo in this court.
In the decision on the former appeal we held that "under his amended complaint the plaintiff should have been allowed to prove the highest market value of all the grain, including the durum, between the 14th day of July, 1933, the time of the conversion, and the date of trial."
It is clear from this that we held that under the amended complaint the plaintiff, because of the conversion, could recover the highest market value for the durum as well as for the dark northern.
It is not necessary to set forth all of the facts. No new facts were developed on the second trial which affect the result.
The plaintiff had wheat in storage with the defendant. As pointed out in the former decision, there had been a conversion of this grain on April 25, 1932, which was cured by a settlement made by the parties. That fact was determined on the former appeal.
In September 1932 the defendant attempted foreclosure for the purpose of collecting storage charges, claimed a lien on the storage tickets, and proceeded to foreclose this lien, but the storage tickets were not in its possession but, on the contrary, were in the possession of the plaintiff. On the former appeal we held these foreclosure proceedings "illegal and void." On this appeal respondent does not attempt to controvert these holdings that the first conversion was cured, and that the attempted foreclosure proceedings were void.
The trial court, on this second trial, adopted the theory that though the attempted foreclosure sale of the storage tickets was void, nevertheless thereafter the plaintiff took possession of the grain, exercised dominion over it, and converted it to its use; that this was in September 1932, that plaintiff had notice thereof, and as the action was not commenced until the 26th day of July 1933, there was such delay as precluded the plaintiff recovering the highest market value. This was based on the theory that under the provisions of § 7168, subd. 2, of the Compiled Laws, it is only "when the action has been prosecuted with reasonable diligence" the plaintiff may recover "the highest market value of the property at any time between the conversion and the verdict without interest, at the option of the injured party. . . ."
The notices sent to plaintiff by the defendant with reference to the *Page 442 attempted foreclosure show that the defendant claimed a lien on the storage tickets which the plaintiff had in his possession; that plaintiff was notified the storage tickets would be sold at a time and place specified in the notices. The plaintiff paid no attention to these notices, did not attend the sale, received no notice of any sale of grain, and no claim is made by the defendant that such notice was given him.
On this trial the defendant, while admitting the foreclosure proceedings were void, asserts that as upon the attempted foreclosure of the storage tickets it actually sold the grain, it therefore was guilty of conversion at that time, and, as a natural consequence, the plaintiff had sufficient information to charge him with notice of the conversion of his grain at that time. This contention the trial court upheld.
We cannot agree with this conclusion of the trial court. The case is here for trial de novo, and while the decision of the trial court is entitled to appreciable weight, nevertheless it is quite clear that during all of the attempted foreclosure proceedings the plaintiff was notified that the storage tickets would be sold. He knew they could not be sold for he had them himself in his possession. He never received any notice of an attempt to sell the grain or that the grain would be sold. In fact, he testifies without contradiction that he supposed they had the grain in storage for him at some other elevator.
In Heaton v. Hoerr, 66 N.D. 430, 266 N.W. 261, we show that where the warehouseman sells grain to satisfy the lien for storage without complying with the provisions of the statute, § 3125a33, there is a void sale and therefore conversion which extinguished the plaintiff's lien. Such statute requires a description of the goods against which the lien exists.
The trial court seemed to be of the opinion that because there was an actual conversion of the grain in September 1932 the plaintiff was limited in his remedy to the price of the wheat at that day as the action was not begun until the following July. But mere conversion does not in itself limit the rights of the owner of the grain. He received no notice of the conversion of the grain and was justified in assuming that what the defendant was attempting to do was to sell the storage tickets. Consequently, the rule laid down in Stutsman v. Cook, 53 N.D. 162, 204 N.W. 976, is applicable in this case: "The warehouse law is for the benefit of the grain farmer. Its object and purpose is to provide for *Page 443 the storing of the farmer's grain to give him an opportunity to hold his grain for the best market and to secure to him the delivery of his grain in like kind and quantity. The law requires the warehouseman to furnish a bond sufficient in amount to protect outstanding ticket holders. The ticket holder may keep his grain stored indefinitely; when the market is satisfactory to him he is entitled to the delivery of the grain and if the grain is converted, it follows that he is entitled to the value of the grain at the time he made his demand therefor."
In July 1933 plaintiff presented the storage tickets to the elevator for the purpose of selling the grain and at that time received notice that the grain had been sold in September for storage charges. According to the record this is the first notice he received of the conversion of the grain, and he commenced his action within twelve days thereafter.
The record shows that since that time the highest market value of No. 1 durum was $1.36 per bushel, of No. 1 dark northern wheat $1.38 per bushel, of No. 2 dark northern wheat $1.34 per bushel, being in the first three months of 1937. The plaintiff had 2123 bushels 5 lbs. No. 1 durum and 1487 bushels 25 lbs. No. 1 dark northern wheat and 54 bushels 20 lbs. of No. 2 dark northern wheat, with a total value of $5,012.85.
In the former trial it is shown that at the time of the abortive sale in September 1932 the plaintiff received notice from the defendant of its claim for storage figured to that date. On this trial it is not disputed that that was the correct amount up to that time and the plainiff admits that he is chargeable with the storage up to the demand in July. The plaintiff, therefore, is entitled to judgment against the defendant for $5,012.85, being the highest market value of his grain from the time of conversion to the time of verdict, less the proper storage charges.
The judgment of the lower court is reversed and judgment ordered for the plaintiff in conformity with this opinion.
CHRISTIANSON, Ch. J., and NUESSLE, MORRIS, and SATHRE, JJ., concur.
(On Rehearing.)