Coan v. Plaza Equity Elevator Co. , 61 N.D. 627 ( 1931 )

The motion for a new trial on the grounds of newly discovered evidence was based upon evidence and the files in the case of Baird v. Coan, et al., and the petition for rehearing states that Coan does not plead payment in said case.

Since writing the opinion in the instant case, the pleadings in said case have been transmitted to this court, and it appears Coan answered, denying that he ever gave the notes and mortgages involved in said case and that if he did give them they were without consideration.

The State Bank of Ashby, one of the defendants in said case, in its answer, specifically alleges that the chattel mortgage set forth in plaintiff's first cause of action and the notes secured thereby were fully paid by the defendant, Frank Coan, by delivering to the State Bank of Berthold the crop covered by said mortgages for the years 1922, 1923 and 1924 and it is specifically alleged that the 1924 crop amounted to approximately sixteen hundred dollars ($1,600). So the question of payment by Coan was in issue in said action. Coan testified that Stevenson got the 1924 crop; that Stevenson had a mortgage on said crop; Stevenson testified that he took the crop and credited Coan, not on the mortgage indebtedness, but on his indebtedness that was not secured by mortgage, and by a credit deposit of the balance in the bank.

The court held as a conclusion of law that the value of the crop which he found to be sixteen hundred dollars ($1,600) should be and was by the judgment credited on the mortgage indebtedness and that the note, which the mortgage secured, was held to be fully paid.

It is well settled that the owner of the property that has been converted by another can only recover his actual loss and facts which will go towards a mitigation of damages, are competent evidence in a trial of an action in conversion. Stone v. Chicago, M. St. P.R. Co. 3 S.D. 330, 53 N.W. 189; Huether v. McCaull-Dinsmore Co. 52 N.D. 721, 204 N.W. 614; Northrup v. Cross, 2 N.D. 433, 51 N.W. 718; First Nat. Bank v. Dickson, 5 Dakota 286, 40 N.W. 351; Rapid Machine Works v. Silberstein, 136 Misc. 837, 241 N.Y. Supp. 68; Sutherland, Damages, § 156, p. 399;9 N.D. 636.

The petition assumes that the judgment in the case of Baird v. Coan is held to conclude the plaintiff in the instant case, but we do not so hold. The question of res adjudicata is not involved at all. The judgment in the case of Baird v. Coan, like every other judgment, is binding only on the parties and their privies. But from the showing made on the motion for a new trial on the ground of newly discovered evidence it appears that there is evidential matter in the record in the Baird case, which is material to the defense in the instant case and the petition is denied.

CHRISTIANSON, Ch. J., and BIRDZELL, NUESSLE and BURR, JJ., concur.