Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-04-01
Supreme Court
FROM WALSH COUNTY,.
Joseph Steidl, Plaintiff and Respond

AdNl 1lJhCI 81 III ST." <AllulCN .rNtdlllCl-
wood, Defendants; David Aitken,
alone, Appellant.
Syllabus: ID A mortgage, who,
unler the insecurity clause in his
mortgage, seeks to obtain the posses
sion of the property mortgaged and
does SO malici0usly and by force or
fraud is a trespasser, and as such
is guilty of wrongful conversion,
which. under the provisions of Sec
ton 5721, Compiled Laws of 1918, ex.
tinguishes the lien of the mortgage.
(2y The provision contained in Sec
ton 6721, Compiled Laws Of 1913,
which provides that. even though the
wrongful conversion of the mortgag.
ed property by the mortgage will ex-
tinguisn the lien Of. the mortgage.
such mortgage may, If an action is
brought for the conversion of the
property. prove the amount of the
deb debt secured by the mortgage
mortgage in mitigation of damages
does not apply to actions in claim and
delivery.
ca Even in an action of conversion
against the MORTGAGE for the wrong
full seizure OF property, such mortga-
gee must pleand and prove the
amount of his mortgage debt if he
seeks to mitigate the damages for
such unlawful seizure.
ca In a claim and delivery pro-
ceeding in which the plaintiff is
shown to be entitled to the posses
sion of property seized by the defend
ant and in which the trial is had to a
court without a jury and in which no
demand is made for a specific valua,
ton of the property; a judgment for
the return OF the property which is
specified or in the alternative for the
payment of a certain sum, being the
aggregate value thereof, in case said
return cannot be had, is not invalid
because of a lack of specific valua-
ton of each article in said judgment
Smith ". Willoughby, "a N. D. l, 1873
N. w. Z.
90 Although in an action of claim
and delivery and in cases where a re-
turn Of the property cannot be had
and a judgment in the alternative is
directed for the value thereof, such
judgment may be in the aggregate
and need not specify the value of
each article unless a demand for such
specification has been made upon the
trial.
Appeal from the District Court of
Walsh County, Kneeshaw, j. Action
of Claim and Delivery to recover pos
session of personal property and dam
ages for the taking and detention.
Judgment for Plaintiff. Defendant ap-
peals. a
Affirmed. Opinion of the ceoqrtt by
Bruce, J.. - Il s,Jsnf
H. &. DePuy of Grafton, North 3Da-
kota, Attorney for Defendants and
Appellant. ~ 4
H. A. Libby of Grand Forks, North
Dakota, Attorney for Plaintiff and
Respondent.
FROM BENSON COUNTY.
James K. Harvey. Plaintiff and Re
spOrdent, '& ~ 4't' 70"
VS..
A. J. Writ, ct al, Defendants and
Appellants.
Syllabus: ~ The first and main
rule for the construction of contracts
is that the intent of the parties as
expressed in the wordsna they have
used must govern. 53Ie bh5 o4lEt
(2) When a contract isHredueed to
writing, the intention of the parties
is to be ascertained from the writing
alone, if possible. '92
60 The whole Of a contract is to
be taken together 80 as to give effect
to every part, If reasonably practical
BILE, each clause helping interpret the
others; but, however broad may be
the terms of the contract, it extends
only to those things concerning which
it appears that the parties intended
to contract.
"a Particular clauses of a contract
are subordinate to its general intent;
and words in a contract which are
wholly inconsistent with it's nature
or with the main intention of the par
ties are to be rejected.
60 l.. executed to H. a chattel
mortgage upon the crop grown during
the year 1904 on certain described
real estate owned by the mortgagor.
The granting clause was of "all the
crops of every kind and description
including hay, ETC." Following the
description Of the real estate on which
the crops yer to be grown was the
following statement: "and it is mu-
tually %covenanted~ and agreed that
this mortgage is a charge and lien on
said real estate until said debt here
by secured is paid, and said lien may
be fOreclosed in the same manner as
other mortgages OF real estate" The
instrument vas expressly named a
chattel mortgage both at the top and
on the back thereof. The habendum
covered only the personal property
aforesaid" and all the provisions re-
lating to the care and custody of the
property, conditions of default, power
Of sale, and the sale, confined to
the personal property. Held, that the
instrument did not constitute a mort
gage On real estate, but constituted
only a chattel mortgage.
(6) Parol evidence is not admissi-
BILE to contradict or vary the terms
of a mortgage.
o. When a contract is reduced to
writing, the presumption is that the
entire actual agreement of the parties
is contained in it, and parol evidence
as to their negotiations or conversa-
tions prior to its execution is not ad.
missible to vary or explain it.
(S) The secret intention of the
parties, if different from the express.
ed intention, will not prevail, as the
law looks to what the parties said as
expressing their real intention.
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