Collard v. Fried

Birdzell, J.

This action is a sequel to two former suits, one of which is reported in Merchants’ Nat. Bank v. Collard, 33 N. D. 556, 157 N. W. 488. The former suits were actions in the nature of creditors’ bills to set aside certain conveyances of real property by Collard and his wife to Fried. The parties to this suit were parties defendant in those actions, and it was there held that the conveyances made by the plaintiff and respondent to the defendant and appellant in this action were not fraudulent. This action was brought to recover the value of the grain raised upon the lands involved in the former suits during the year 1915, which grain, it is alleged, was raised by the plaintiff, who occupied the premises under a cropper’s contract. It is alleged that the grain was delivered to the defendant and subsequently converted by him. The defendant answered, setting up certain portions of the lease which he claimed were broken by the plaintiff. resulting in damage to tbe defendant, and also alleged that there were certain balances due to him from the plaintiff for goods, wares, and merchandise, and for expenses' incurred by the defendant in the defense of the previous actions by the plaintiff’s creditors in which it was sought to set aside conveyances made to the defendant. The defendant’s items of counterclaim amount to the sum of $5,131.55 as against which he credits the plaintiff with the sum of $1,395, the alleged value of the plaintiff’s share of the crops which had been received and sold by the defendant. Many of the items of counterclaim were alleged to have arisen prior to April, 1915, and the plaintiff replied to the counterclaim, alleging that all differences and indebtedness be; tween the plaintiff and defendant had been settled in the previous litigation (in which they were both parties defendant), and were included in the judgment entered in April, 1915. The issues were tried to a jury- and a verdict rendered in favor of the plaintiff for the sum of $3,662.76, upon which judgment was entered. This appeal is from the order of the trial court denying a motion for a new trial and from the judgment.

Counsel for the appellant present 39 assignments of error. The first assignment relates to the introduction in evidence of the rental contract between the parties. Defendant’s counsel objected to its introduce fcion on the ground that there were upon the back of the exhibit some figures which were foreign to the contract. The exhibit was offered by the plaintiff’s attorney with the statement that he did not offer in evidence the figures on the back and that they were to be excluded. There is no merit in this assignment.

It is next urged that the court erred in overruling defendant’s objection to a question asked of the plaintiff as follows: “Did you comply with your contract?” The objection was that the question called for a legal conclusion. Compliance with the contract is in itself a conclusion of fact, and, inasmuch as the defendant had ample opportunity to cross-examine the plaintiff as to the character and degree of performance, there is no merit in this assignment.

Assignments 3, 4, and 8 relate to the propriety of permitting the plaintiff and one Holden to testify concerning the price of wheat at Wimbledon on the 25th and 26th of August, 1915, and on subsequent dates up to about May 1st following. The record discloses that there was ample testimony upon tbe question of the quantity and grades of grain alleged to have been converted by the defendant, and that the plaintiff testified to his knowledge of the market prices with references to. the grades, fixing the dates for the given prices as best he could from memory. It appears that the action was promptly brought after the alleged conversion took place, and that the plaintiff and respondent has brought himself within § 7168 of the Compiled Laws of 1913, which provides for the recovery of the highest market value of the property converted as damages when the action is prosecuted with reasonable diligence.

It is nszt contended that the court erred in allowing the plaintiff to testify that he had prosecuted his action diligently. We cannot see wherein this testimony is seriously prejudicial to the defendant. This .assignment is obviously without merit.

Assignments 10, 11, and 12 relate to rulings, of the court excluding the witness’s legal conclusion as to whether or not in the previous litigation hereinbefore referred to, to which plaintiff and defendant were parties, title to lands conveyed by the plaintiff to the defendant was in question. The record discloses that the pleadings, findings, conclusions, order for judgment, and judgment in the former suits were admitted, having been offered by defendant’s counsel. In the face of this record, it is absurd to contend that it was error to refuse to allow the witness to testify to his conclusion as to what was involved in these former suits.

At this point we may as well consider the validity of the defendant’s counterclaim for $500 attorneys’ fees, paid in defending the former actions. Apparently the sole object- in introducing the records of the former suits was to lay a foundation for this claim. Upon the appeal in the case of Merchants’ National Bank v. Collard, supra, this court adopted the findings of the trial court. It appeared that the defendant, Fried, was himself interested in protecting the title acquired from Collard from the assault of the plaintiff. It was claimed that the conveyances were fraudulent, and that Fried was a party to the fraud. Furthermore, it appeared in the litigation that the interests of Collard and Fried did not run altogether parallel, since it was found, contrary to the allegations in Fried’s answer, that he still owed Collard a part of the purchase price, which part was held to be subject to the lien of the plaintiff’s judgment. Under, these circumstances, the defendant, Fried, in this action can have no valid counterclaim based upon the costs of defending tbe former suit or suits. It is not even contended here that Collard’s title is subject to any defect or that the title vested in Fried has been in danger of being devested on account of any action or circumstance in which he was not a participant. The trial court, however, instructed the jury that if they should find that it had been necessary for the defendant to expend $500 for attorneys’ fees to defend the title conveyed to him by the plaintiff, they might allow it as a counterclaim in this action, but if they should find otherwise, defendant would not be entitled to recover the same. This instruction was as favorable as the defendant could ask..

Assignments 18 and 22 attack the propriety of excluding from this case a counterclaim based upon an account of indebtedness owing by the plaintiff to the defendant in the year 1914. This account was first admitted, but later excluded on the ground that, as stated by the trial court, “it is a question which has been held in abeyance for some time, or a ruling rather; and (I) desire to make a ruling that the account for 1914 has already been adjudicated in the former cases, as well as the crops of 1914, and these matters are not in this case at this time/' The record shows that the trial judge made this ruling after he had “taken the time to look over the pleadings, evidence, and record” [in the former actions]. The former suits were equitable in their nature and were tried to the court, and the same judge who sat in the trial of this action determined the facts in those cases. Ilis statement in the record in this case, quoted above, as well as his statement found in the reasons assigned for denying the motion for a new trial, are entitled to great weight upon the question of res judicata. In the memorandum opinion, denying the motion for a new trial, the judge said: “A claim of several hundred dollars was contended for, going back to the 1914 account, which was adjudicated' in the former action and shown in the former record.” A 1914 book account appears in this case as defendant’s exhibit 13. The same account appeared as an exhibit in the former case of Merchant’s Nat. Bank v. Collard, 33 N. D. 556, 157 N. W. 488, and inasmuch as it was necessary to determine in that case the amount of Collard’s equity, if any, in the land, there can be no. question but what his indebtedness to Fried was taken into consideration in arriving at tbe value of bis equity. It was clearly not error to exclude the 1914 account and to instruct the jury to disregard it.

A number of assignments of error are based upon the instructions given to the jury. We have carefully read the instructions and they appear to us to correctly state the issues raised by the pleadings and the law applicable thereto. Assignments 31, 32, 33, 34, 35, and 36 are predicated upon the refusal of the court to give certain requested instructions. An examination of the requested instructions and a comparison of the same with the charge given disclose that, in so far as the requested instructions state the law applicable to the case, such law was amply covered in the instructions given. In these circumstances it was not error to refuse to give the instructions requested.

The record discloses that the issues in this ease have been fairly and fully tried before a jury, that the jury was properly instructed upon the law, and that a verdict was rendered which is well within the evidence. The motion for a new trial presents no matter for consideration that is not covered by the other assignments.

Finding no error in the record prejudicial to the defendant, the judgment is affirmed.