32 Mont. 349 | Mont. | 1905
delivered the opinion of the court.
This action was commenced by Adlam & Thompson to recover from the defendant McKnight the sum of $288.80. The complaint alleges that during the month of January, 1898, the plaintiffs sold and delivered to one Charles Simons goods,
The court gave to the jury a general instruction outlining the issues disclosed by the pleadings as indicated above, and then proceeded: “The issues to be decided by you are: 1. Did Charles Simons direct defendant, McKnight, to pay Adlam & Thompson the amount alleged? 2. If Charles Simons directed defendant, McKnight, to pay Adlam & Thompson the said amount, did McKnight at that time have in his hands sufficient money belonging to Simons to pay the said debt? 3. If Simons directed defendant, McKnight, to pay Adlam & Thompson the amount stated, and the defendant, McKnight, had in his hands at that time sufficient funds belonging to Simons to pay the same, did he agree to pay plaintiffs the said amount, and fail to keep his agreement? If you decide each of the above issues in the affirmative, you will find for the plaintiffs for the amount found to be due. Unless you decide
It thus becomes entirely immaterial what theory of this case the plaintiffs may have had, for the case submitted to and determined by the jury is made by the court in limiting the jury to a consideration of the three questions propounded above. Under the pleadings, as well as these instructions of the court, there was not any question of novation or of an original promise on the part of McKnight involved.
The evidence is conflicting as to the subject matter of the first and third questions, and, for the purpose of this appeal, it may be said to be sufficient to sustain the findings of the jury in reference thereto. So far as the answer to the second question above is concerned, it may be said that the only evidence touching this feature of the case is to be found in the testimony given by Simons, a witness for plaintiffs, and by the defendant, McKnight, in his own behalf; and since the court told the jury that they must answer the second question in the affirmative, as well as each of the other two, in order to find for the plaintiffs, the decision on this appeal turns upon the question: Does the evidence show that, at the time McKnight made the promise (if he made it), he had in his possession funds belonging to Simons sufficient to pay the bill of Simons to Adlam & Thompson?
On his cross-examination the witness Simons testified: “I sold thirty-two head of cattle to Mr. McKnight; I was to receive $22 a head for them. I bargained to sell, I told him. He wanted to buy the brand, and I told him there must be about fifty-six head, and Hank Weimer went out and only gathered thirty-two head; that was all I sold him. I was in debt to Mr. McKnight at that time; I think I owed him $71; I don’t know for certain how much I owed him.”
During his examination the defendant, McKnight, in his own behalf testified as follows: “I am acquainted with Charles Simons. I had some business transactions with him in the
The evidence discloses that the agreement between Simons and McKnight for the sale of the cattle was made on or about January 2, 1898, and the agreement by McKnight to pay the amount of Simons’ bill to Adlam & Thompson, if made at all, was made on or about January 11, 1898. In order for the jury to say, as it did, that on January 11th McKnight had in his hands sufficient funds belonging to Simons to pay the debt of Simons to Adlam & Thompson, it must have found that the agreement made on January 2d between Simons and McKnight amounted to an actual sale, wherein title to the property which was the subject of sale passed at once to McKnight, for it is only upon this theory that it could be said that Mo-
Section 1540 of the Civil Code provides: “The title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not.” An analysis of this section shows that the actual passing of title, as between the parties to the contract, is made dependent upon, first, the intention of the parties; and, second, the identification of the thing sold. So far as the evidence above discloses any intention, if it does disclose any whatever, it is that the title was not to pass until delivery; and there is no evidence at all as to any identification of the property, unless the act of delivery was such identification, and this did not occur until about March 1st. The intention of the parties is one of fact, to be determined by the jury, and the court should by proper instructions have guided the jury in determining whether there was in fact a sale or merely an executory agreement of sale, as defined in section 2323 of the Civil Code. (24 Ency. of Law, 2d ed., 1048, and cases cited; 1 Benjamin on Sales, Corbin’s ed., secs. 309, 311.)
No instructions upon this phase of the case were given, and from the meager proof it was impossible for the jury to say that, as between Simons and McKnight, they intended that the title should pass at once, and that there'was in fact an identification of the property sold. How many cattle did McKnight in fact agree to purchase? Suppose that between the date of the agreement between McKnight and Simons and the date of delivery all the cattle had died, would McKnight have been indebted to Simons, and, if so, for what amount? If McKnight was indebted to Simons on the 11th of January, was it for fifty-six head of cattle, or for only thirty-two, the number which was actually afterward delivered, and was not the delivery the only identification ever intended by the parties?
There was not sufficient evidence before the jury to justify an affirmative answer to interrogatory No.' 2 above; and, as the court instructed the jury that every one of the three questions submitted must be answered in the affirmative in order to support a verdict in favor of the plaintiffs, the verdict returned and the judgment based thereon are not supported by the evidence. We are of the opinion that the court adopted the correct theory of the case as disclosed by the pleadings, but there was not even sufficient evidence to go to the jury upon-the subject embraced in the interrogatory No. 2 above, and for this reason the judgment and order are reversed, and the cause is remanded to the district court with directions to grant a new trial.
Reversed and remanded.