Cady v. Zimmerman, 20 Mont. 225

Cady v. Zimmerman

20 Mont. 225 | Mont. | 1897

Per Curiam.

The appellants contend that the alleged sale of the sheep in -controversy by Graves to Cady was not accompanied by immediate delivery, nor followed by an actual and continued change of possession, and hence is conclusively presumed to be fraudulent and void, against the attaching creditor in this case. This is the only question raised by this appeal.

*228Counsel for appellants cite Harmon v. Hawkins, 18 Montana 525, 46 Pac. 439, and Story v. Cordell, 13 Montana 204, 33 Pac. 6, in support of their contention that the alleged sale in the case at bar was void because not accompanied by immediate delivery and actual and continued change of possession of the property alleged to have been sold.

Harmon v. Hawkins, supra, decided merely a question of pleading. The complaint in that case set out the evidence of plaintiff’s title to the personal property mentioned in that case. The defendant demurred to the complaint on the ground that the complaint did not allege any delivery or change of possession of the property mentioned. The court simply held that the complaint was insufficient for the reason stated in the demurrer. In other words, this court held that the complaint in Harmon v. Hawkins did not allege a delivery or change of possession of the property mentioned therein.

In Story v. Cordell, supra, Cordell executed a bill of sale to the property in controversy, absolute on its face; but accompanying the bill of sale was an agreement between Cor-dell and the plaintiffs that, if Cordell paid plaintiffs’ indebtedness within a period fixed in the agreement, the bill of sale should be canceled. This court held that agreement to be, in effect, a chattel mortgage, but that, as it was not accompanied by an affidavit of good faith, or acknowledged and filed as required by the statute, it was void as against the creditors of Cordell. In that case this court further held that the marking of certain barrels of whiskey with a cross and the vendee’s name, and removing them from one part of the building occupied by Cordell to another part, did not constitute a delivery, as against third parties. In Story v. Cordell there was no parting with the ownership, and no change, or pretense of change of possession. It was, at most, a conditional sale of personal property.

The facts in the case at bar bring it more nearly, we think, within the rule of this court as announced in Dodge v. Jones, 7 Montana 121, 14 Pac. 707.

In that case this court said : “No particular act or formal *229ceremony is necessary to ■ make a delivery in law. Any act done, coupled with the intent to change the ownership, which has the effect to transfer the dominion over the. thing sold to the buyer-, is a delivery. Any small chattel capable of being handled may be delivered by handing it to the buyer, as selling goods across the counter in a store; but horses are not capable of this manual kind of delivery. We think, when the bar was branded under the K, so that the appellant’s horses could be distinguished from those of the Kirkpatricks, and they were turned out on the same range, those acts were done with the intent to transfer the ownership and dominion over these horses to the appellant.”

¡In the case at bar, when Graves turned over the 275 lambs to Cady, the latter placed the “bottle brand” on each of the sheep, which was evidently the brand of the plaintiff; and thus by this brand plaintiff’s sheep were distinguished from the other sheep belonging to Graves or anybody else, so that by such branding creditors of Graves might have been presumed to have notice that the ownership in the sheep thus marked had been changed from that of Graves to the plaintiff or some one else.

We think the rule announced by the Supreme Court of California in Porter v. Bucher, 98 Cal. 454, 33 Pac. 335, is appropriate to the facts of this case.

In that case, which was a very similar one to the one at bar in principle, the court said : “In the determination of the question as to the kind of possession necessary to be given in order to make a sale of personal property valid as against creditors, regard must be had, not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. The law only requires that which could naturally be done in an honest and businesslike transaction, where there was no thought of «fraud or concealment. ’ ’

In this case there is no pretense of fraud or concealment. The transaction has attached to it no suspicion even. We think the court below was justified, from all the facts, cir*230cumstances, and conditions of this particular case, to hold that there was a sufficient delivery of the property and change of possession thereof at the time of the sale to take the case out of the statute of frauds.

This being the only question before this court, we are of the opinion that the judgment should be affirmed, and it is so ordered.

Affirmed.