Caldwell v. Garner, 31 Mo. 131

Caldwell v. Garner

31 Mo. 131 | Mo. | 1860

Napton, Judge,

delivered the opinion of the court.

What constitutes a delivery of personal property must necessarily depend very much on the particular character of the property and the circumstances attending the alleged delivery. In this case the property consisted of railroad ties, cut upon the plaintiff’s land, and the transfer attempted to be proved was from the party who had cut the timber and. had not paid for it, and was for the avowed purpose of securing the plaintiff in his claim growing out of this transaction. The ties were still on the plaintiff’s land when the sale or pledge toook place. The date of the paper, purporting to deliver the cross-ties to plaintiff for the purpose of holding them until his claim for the timber was paid, was the 27th of February, 1857, one day after the issue of the attachment sued out by the defendant in this case, but several days previous to its levy. If the transaction was bona fide, we do not see what ground the attaching creditor has to stand on.

The only dispute was as to an actual delivery. It is difficult to see what additional acts on the part of the vendor or vendee could be necessary to complete the sale or pledge evidenced by the writing in this case. Caldwell, the plaintiff, was the owner of the land where the cross-ties were cut and lying; and although, by the terms of his contract with the party who had cut down the timber, payment was not due till the 1st o£ March, nothing could be more natural or proper than for this party to be willing to secure this debt by leaving the ties with the owner of the land from whose timber they were made. Such a transaction has no semblance of fraud about it. What creditor could have a higher claim upon this property than the one whose claim grew out of the transfer of the property itself ? There was no lien ; ffiit if a debtor under such circumstances sees proper to secure his vendor and creditor, it can not be pretended that any suspicion of fraud ought to be entertained.

There being then no appearance of fraud, what change of *135possession could be effected in the property to make a delivery ? The property was already on the plaintiff’s land, and, so far as we can see, capable of being quite as conveniently disposed of there as by hauling it to some other point. What other possession could be taken of two thousand railroad ties lying in the woods where they were cut ?

The question of delivery was disposed of by the jury under instructions to which no objections are perceived. The paper signed by Taylor was prima facie executed at its date, and was at least prima facie evidence of a complete transfer, effectual against a subsequent levy under an attachment. There was no circumstance in evidence to throw any doubt over its actual execution on the day it bore date. There was, it is true, an offer to prove declarations of Taylor, on the day of the levy, to the effect that he had never transferred the ties to the plaintiff, but those declarations were clearly incompetent. Taylor was a competent witness, and upon what principle could his declarations be used ? His acts, and perhaps his declarations, whilst acting as agent, would be competent against his principal; but how could his declarations, made after his agency expired, be any evidence, even against his principal, much more against this plaintiff ? They could constitute no part of the res gestee; they would be mere declarations of a third person, not a party to the suit, or acting as agent of a party. Taylor should have been called, if any information was desired from him concerning the date of the paper executed by him as agent.

Whether White was a competent witness for plaintiff as to the identity of the logs or ties is a question which, so far as the merits of this case are concerned, is obviously immaterial. The identity of the ties was well established by other proof. There was, in truth, no dispute at the trial on this point.

The statute contains a provision that disqualifies an assignor from testifying concerning facts occurring anterior to the assignment, and does not permit him to give any evidence which might have a tendency to destroy or qualify in any *136way the effect of the written instrument by which he has passed a title to property. (R. C. 1855, p. 1578.) We suppose there was no intention in this provision to prohibit the assignor from proving the fact of the assignment itself. Such proof does not come in conflict with the letter or the spirit of this provision. The latter part of the clause is a mere codification of an established principle in the law of evidence; the first part presents some difficulty in determining to what class of facts the prohibition was intended to extend. The object of the clause is not very clear. Some facts have no relation to time. There may be a period at which the knowledge of them is obtained by the witness, but the facts themselves are independent of time. Was it designed to preclude the witness from speaking of such facts ? If not, what was the motive for prohibiting the assignor from testifying to occurrences which had passed away and were ended, if at the time of his examination he had ceased to have any interest in the matter ? If they were of a character to affect the rights of his vendee, the latter part of the clause excludes them; but if they were not of this nature, the object of excluding them is not very perceptible.

Judgment affirmed.

The other judges concur.