#### JOHN LOFTHOUSE, Respondent, v. GALESBURG STATE BANK, a Corporation, Appellant.

(190 N. W. 177.)

New trial — overruling motion for new trial not particularizing grounds held not error.

The defendant made a motion for a new trial. The trial court made an order denying the motion. In this the trial court did not err.

Opinion filed September 30, 1922.

Appeal and Error, 3 C. J. § 1522 p. 1373 n. 42; 4 O. J. § 1522 p. 1373 n. 43; § 3092 p. 1111 n. 85; New Trial, 29 Cye. p. 942 n. 95; p. 952 n. 23.

Note. — On appeal from order denying motion for new trial, see 2 R. O. L. 188; 1 R. O. L. Supp. 431; 4 R. O. L. Supp. 90; 5 R. O. L. Supp. 79.

*97An appeal from an order of the District Court of Traill County denying the defendant’s motion for a new trial, *Cole,*J.

Order affirmed.

*I. A. Acker,*for appellant.

“Naming one as consignee in, or indorsing and delivering to him a bill of lading, may be shown by parol to have been intended as evidence of an absolute sale, a trust, a mortgage, a pledge, a lien, or a mere agency.” Leuthold v. Fairchild (Minn.) 27 N. W. 509; Bank v. Jones, 4 N. Y. 497; Bank v. Daniels, 47 N. Y. 631; Bank v. Wright, 48 N. Y. 1.

In the case of Hodgson v. St. Paul Plow Co. 80 N. W. 956, 78 Minn. 172, the court held: “Where a servant received a trust fund from his master and distributed under his orders, the servant is not liable for converting such fund.” The case of Leuthold v. Fairchild (Minn.) 27 N. W. 509, is to the same effect.

*Spalding & SJmre,*for respondent.

“A demand followed by refusal is only evidence of a conversion.” More v. Burger, 15 N. D. 345; Taugher v. N. P. Ey. Co. 21 N. D. 11; 2 M. A. L. 95, 93.

“Demand was unnecessary under the well-established principle that it would have been unavailing. Demand and refusal need not be made before the commencement of the action in case a demand would be obviously unavailing, as when, by pleading and proof, the property is shown to be detained under a claim of absolute right.” More v. Burger, 15 N. D. 345; Consolidated Land & Invest. Co. v. Hawley, 7 S. D. 229; Tapley v. Forbes, 84 Mass. 20; Crampton v. Valido Marble Company, 60 Vt. 291; Hahn v. Sleepy Eye Mill Co. 21 S. D. 324.

Demand is not necessary when conversion can otherwise be shown. Crampton Case, 2 M. A. L. 93; 26 E. C. L. 1123, note 10; 21 Enc. PL & Pr. 1083; 38 Cyc. 2071; 38 Cyc. 2032, notes 76 and 84.

And the sale constitutes a conversion.

If the defendant wrongfully delivers the property in question to a third party that such delivery passing it out of his control constitutes conversion, and that the date of the conversion is the date of the delivery. Taugher v. N. P. Ey. Co. 21 N. D. Ill; Bank v. Osborne-MacMillan Elev. Co. 21 N. D. 335; 2 M. A. L. 81; Elev. Co. v. Dawson, supra; Dammam v. Schibsby Implement Co. supra.

*98Grace, J.

This is an appeal from an order of tbe district court of Cass county, denying defendant’s motion to vacate tbe verdict rendered in tbe above-entitled action, and tbe judgment entered tbereon, and for a new trial.

In order to give clarity to tbe present appeal, it may be well to give a short bistory of tbe litigation. Tbe plaintiff brought an action against tbe defendant, alleging conversion by it of certain of plaintiff’s wheat. Upon proper pleadings, issues were formed and tried to tbe court and a jury. Tbe jury returned a verdict in plaintiff’s favor for $204-, and interest and costs; in all $258.80. A judgment was entered on tbe verdict and defendant appealed from it.

Tbe case was argued orally before this court. An opinion was prepared by Mr. Justice Christianson (48 N. D. 1019, 188 N. W. 585) and in so far as it disposed of tbe merits of tbe ease, all tbe members of this court concurred in it. This opinion affirmed tbe judgment. It however, affirmed tbe judgment without prejudice to tbe right of tbe defendant to present a motion for a new trial in the lower court. Tbe defendant did present a motion for a new trial, which though not argued, was beard before tbe trial court, and it made an order denying tbe motion for a new trial. From that order, this appeal is taken.

Tbe only assignments of error are:

> 1. Error based upon tbe giving of certain instructions of law by tbe court.

> 2. Insufficiency of evidence to justify tbe verdict, and that tbe verdict is against law.

Tbe instructions complained of are as follows:

> 1. “In order for tbe plaintiff to have a right to recover against tbe defendant in this case be must prove by a fair preponderance of tbe evidence that crops were raised upon tbe premises described; be must further prove by a fair preponderance of the evidence that tbe crops raised on tbe premises, or tbe proceeds from tbe crops, came into tbe bands of tbe defendant, and that by tbe defendant the proceeds or the crops either one, was handled and used and converted, if it was crops into money and if not the crops, *the money used in*tbe business of tbe defendant whether that business be with Eggers or others.”

> 2. “But if you should find from determining upon the whole of tbe evidence that tbe off-set for tbe thresher’s lien was equal to, or perhaps *99beyond tbe value of tbe crop on tbe premises that came into tbe possession of tbe defendant, either by way of crop or by way of proceeds thereof, then you would find in favor of tbe defendant and not for tbe plaintiff.”

> 3. “I charge you further that in determining what was tbe proceeds of tbe crop from tbe premises in question that came into tbe bands of tbe defendant bank, if any, would be tbe proceeds as actually received by the bank, or came into tbe bands of tbe defendant bank. Of course, when I speak of proceeds of grain, I mean the proceeds of tbe grain raised upon tbe Lofthouse land, that is, tbe land in question, and I so charge you.”

An examination of tbe record in tbe prior case discloses that certain errors were assigned which were based on erroneous instructions of law by tbe trial court, and it further discloses that those instructions are identical with those upon which error is predicated upon this appeal. In the opinion in tbe former case, tbe court said, referring to tbe instructions: “And tbe instructions to which exception is taken were not erroneous under the .rule announced in tbe case last cited.” It is clear from tbe opinion that tbe court found no error in the instructions complained of. Tbe alleged errors in the instructions were, we think, properly and rightly disposed of in that appeal. In other words, the opinion reached tbe right conclusion in determining that there was no error in tbe instructions, hence, there is no reason for re-examining tbe sanie instructions in this appeal. Such matter was disposed of in tbe prior appeal.

Tbe second assignment of error is based upon the insufficiency of tbe evidence to sustain tbe verdict. Tbe appellant, in no way, points out -wherein -the evidence is insufficient to sustain tbe verdict. If it desired seriously to assert that there is no substantial evidence to support tbe verdict, or that tbe evidence is wholly insufficient, it should have specified the particulars of such insufficiency. This is a requirement provided for by § 1656, Comp. Laws, 1913. The appellant having failed in this respect, this attempted assignment of error amounts to nothing.

There is no error in the record and tbe order appealed from is affirmed. Eespondent is entitled to bis costs and disbursements on appeal.

*100Birdzell, Oh. J., and CheistiaNSON, and Bronson, JJ., concur.

BroNSON, J.

(specially concurring). For tbe reasons outlined in my opinion in tbe former case, see 48 N. D. 1019, 188 N. W. 586, I concur in tbe affirmance of tbe order.