
    THOMPSON v. TWETO.
    (134 N. W. 743.)
    Conversion — motion for directed verdict — error in instructions.
    An action brought, based on the alleged conversion by defendant of personal property. Evidence examined and defendant’s motion for directed verdict held properly denied. Error assigned on instructions held untenable. The verdict decided the only issue involved, that of title to such property.
    Opinion filed January 23, 1912.
    Appeal from the District Court of Richmond county; Allen, J.
    Affirmed.
    
      Purcell & Divet, for appellant.
    
      Wolfe & Schneller, for respondent.
   Goss, J.

This is an action brought for defendant’s conversion of a team alleged to belong to the plaintiff. Its decision depends upon which of the parties litigant owned the team. The time involved is from October, 1907, to the following August. Eor some years previous to the first date mentioned, plaintiff had been in possession as owner of a half section of land, until the issuance to defendant, in July, 1907, of a sheriff’s deed on foreclosure; plaintiff, however, continued in possession until the end of the crop season of 1908. In October, 1907, plaintiff and defendant discussed a purchase of the land by plaintiff. The land was then owned by a bank of which defendant was a managing officer, and which bank formerly owned the mortgage foreclosed. The terms of the contemplated sale were partially agreed upon. Plaintiff was to pay a certain amount, $1,500 of which was to be obtained by a mortgage loan on the premises, the proceeds thereof to be turned in as a part payment to the owner of the land. According to plaintiff, defendant was to accept this team as a further $300 payment on the land, and, in addition thereto, accept plaintiff’s second mortgage on the premises, securing the balance of the purchase price; defendant claims $1,000 was to be paid of the balance remaining of the purchase price, including therein $300 as the agreed value of the team in question. No cash payment was ever made on the land, and no deed or contract in writing was executed. Naturally the first step in the sale was to float the loan. To do this plaintiff executed two applications to different loan agencies, leaving them with defendant, who was to procure the loan. Both parties throughout the winter and following spring endeavored to place the proposed loan with various money loaners, but they were unable to do so, and no mortgage was ever executed. About harvest time in July or August, 1908, defendant had arranged to obtain the money in this manner, when plaintiff abandoned the transaction and the land. He had meanwhile received the benefit of the 1908 crop, already harvested, and taken by his mortgagee, a third party bank. Plaintiff throughout the course of these proceedings had remained in possession of and cropped the land, under the belief that the arrangement which had been entered into in October, 1907, would be carried out. In 1909, the bank sold this land to a third party, and no effort has- ever been made to treat the transaction other than as abandoned; except that defendant claims that the horses were turned over on the deal as a part payment for the land, as the result of which title to the horses would pass to defendant .and defeat recovery in this conversion suit.

The foregoing furnish the setting for the moré important facts directly concerning the title to the team. The possession of the team was taken by defendant in October, 1907, soon after this proposed arrangement was had. Concerning the immediate taking, the facts are in dispute, excepting that defendant procured possession of the team from a third party in whose possession plaintiff had temporarily placed it. Plaintiff avers the taking was unauthorized, and that the horses were not to be turned over at that or any subsequent time, until the sale of the farm was actually closed by the procurement of the loan, the deeding of the farm, and the completion- of the contemplated land sale agreement, and that plaintiff suffered the team to remain with defendant because of his expectation that the farm deal would be closed in the near ■future. After defendant refused to deliver the horses to plaintiff, having sold one of them in July or August, 1908, this action for conversion was brought. Defendant, on the contrary, testifies to a delivery of the team on the contract for the sale of the farm that plaintiff told him where the horses were and to go and get them; in pursuance of which he took possession of them as a payment on the land deal and as property so sold the bank; he denies any subsequent request by plaintiff for tbe return of tbe team. In short, defendant claims that tbe barde became tbe owner of tbe horses under tbe terms of tbe land agreement when be procured possession of them, and that bis obtaining possession constituted a delivery to him by plaintiff under a sale of the horses to tbe bank. He admits tbe subsequent sale of one of tbe horses by tbe bank. He claims to have notified plaintiff that in all this dealing be was acting only as tbe representative of tbe bank, and not individually. Plaintiff denies that tbe team was turned over to tbe bank or that tbe bank was interested in any way in it.

Tbe issue, as litigated, was one of title. If ownership of tbe team after defendant procured its possession remained in plaintiff, this action will lie. Conversely, if defendant obtained possession as a delivery thereof under a sale, title passed, and this action should be dismissed. Tbe court so instructed tbe jury, and on this dispute, on conflicting testimony, tbe jury found for the plaintiff on all the issues involved. It thereby found in accord with plaintiff’s version, that tbe property had remained plaintiff’s property and never bad been sold. If no reversible error appears, this finding of fact by tbe jury must settle tbe controversy.

An examination of tbe instructions discloses that the jury were instructed on tbe issue of passing of tbe title to tbe property in question. Tbe court, in substance, informed tbe jury that if tbe plaintiff parted with title to tbe horses to defendant, or tbe bank, they should find for the defendant. While the instructions are not as specific in this particular as to tbe bank as they are to tbe defendant, we are satisfied that tbe necessary inference to be drawn from the instructions is as above stated; and in tbe absence of any request for more definite instructions, counsel for appellant is, on that score, in no position to complain.

Appellant assigns error on tbe court’s denial of bis motions for directed verdict, based on tbe contention that tbe evidence affirmatively, and without substantial contradiction, established that tbe transfer of possession of tbe horses was a transfer of tbe then right of possession thereof, and that tbe act of plaintiff in leaving tbe possession of tbe horses in defendant constituted an election 'of remedies, to tbe effect that tbe horses became a part of tbe consideration for tbe oral contract of sale of tbe lands; and that if any right of recovery exists, in favor of plaintiff therefor, it is not for tbe conversion of tbe horses, but for a specific performance of tbe oral contract of sale ás partly performed or damages arising from tbe failure of tbe defendant to carry out said contract. That by plaintiff’s acts of election and recognition of said executory land contract after possession of tbe borses by defendant, plaintiff waived any right to recover said borses, either in replevin or conversion.

Defendant’s motion assumes, notwithstanding conflicting testimony thereon, that tbe possession of tbe borses was actually obtained under tbe agreement, and that tbe borses constituted a payment at tbe time upon an otherwise wholly executory oral contract of sale of land, and were delivered, accordingly, as a partial performance of such contract. On this proposition tbe finding of tbe jury on tbe question of title is a finding of fact adversely to such assumed facts, inasmuch as tbe jury could not find as a fact title to have remained in tbe plaintiff, and there exist a parting of title to defendant as a part performance under tbe contract. On tbe facts, then, tbe title to tbe team never having passed, it cannot be asserted any sale was made or that the transfer of possession was any part performance of tbe land contract, tbe parties agreeing without conflict that it was only when tbe title to this team passed that $300 was to be considered as paid upon tbe land. As title never passed, no payment was ever made, and tbe team transaction in no wise could constitute a partial performance of this land contract. And as to defendant or bank keeping possession, we fail to see bow it effects tbe issue in tbe case. Likewise, any benefits plaintiff may have received under tbe land transaction resulting from tbe crop raised thereon or otherwise may be a matter for a separate action; but inasmuch as it cannot affect tbe title to tbe property here involved, tbe team, title to which by tbe verdict is established as a fact to have been in plaintiff, we cannot see bow plaintiff, by permitting tbe team to remain with defendant, waived bis title or right of possession thereof based upon title, or its equivalent, — an action in conversion for tbe value of such property. In other words, it matters not whether the land deal is or ever was enforcible as such, tbe jury having found, on conflicting testimony, that title to this property in suit never passed from plaintiff. Further than this, if title to tbe borses did not pass on delivery, and tbe jury found it did not, tbe evidence amply explains why tbe possession of tbe borses remained as it did with defendant. Both parties dealt with the idea of a future consummation of the land sale, which remained wholly unexecuted, and regarding which it is in fact doubtful if the minds of the parties ever fully met as to the particulars necessary to consummate such transaction.

An examination of the assignments urged as error in the admission or exclusion of testimony shows the record to be free from reversible error in this respect. Many of the alleged errors assigned were subsequently cured by the later admission of such excluded testimony. The matter in the record most prejudicial to the defendant, and to which exception was taken, was the remarks of counsel for plaintiff to the jury in his argument of the case; but these are not assigned nor argued in the brief, and are therefore treated as waived. The judgment of the trial court is ordered affirmed.  