121 P. 481 | Mont. | 1912
delivered the opinion of-the court.
1. This i's an action in claim and delivery to recover the possession of two mules, or their value in case delivery cannot be had. The plaintiff prevailed in the court below, and defendant appeals from the judgment and also from an order denying his motion for a new trial. The cause was tried to a jury. The defendant,' Sales, is the sheriff of Gallatin county,' and seized the animals by virtue of a writ of attachment against one Terrill. The complaint alleges that “on the 11th day of March, 1911, and prior thereto, plaintiff was and now is the owner and entitled to’ the possession” of the two mules; that
2. It is contended that the evidence does not support the verdict. As the-cause was decided for the plaintiff it must be
Gastineau testified: “During the time that I was using the mules I was working for the plaintiff and he was paying me. After the 8th of September and as long as I had them, the mules were in my possession. Terrill had nothing to do with them. I was not working for him in any capacity and I did not accept any orders from him. Terrill told me to go to Black’s; he collected the money for the job and paid me.”
Stiles testified: “Terrill engaged to haul the grain, in this way: He said: ‘I want to put in two four-horse outfits to haul,7 and that was one of the teams that the mules were put on. Gastineau was driving them. The first payment that was made was to Terrill, but he said it was for Ben Chestnut. Besides Terrill and Gastineau, Brownell, Saisbury and Miller were hauling. All of these kept track of the amount of grain each hauled, and the tickets were delivered to me and showed upon their face who hauled the grain.”
Wilbarn testified: “Last fall on my place I pastured two mules and two horses and collected the pasturage from Ben Chestnut. ’ ’
Hiram Chestnut, plaintiff’s brother, testified: “I think I kept the mules about a month and then Ben Chestnut came and got them and settled for their keep and care while I had them. He told me I could put them up for sale and sell them if I could get the right price, $500, for mules and harness.”
Brown testified for the defendant: “As auctioneer I held a sale for Terrill; sold this team of mules; it was Terrill’s sale and when I put them up I thought they were Terrill’s. I told Gastineau, ‘I want to buy those mules,’ and he said, ‘You see Terrill and you can get them. ’ ’ ’
Defendant also offered in evidence a paper signed by Terrill which reads as follows:
“March 13, 1911.
“Regarding the span of mules attached by the Belgrade Co. Ltd. will say that, the said mules belong to Ben Chestmjt and
Plaintiff’s counsel admitted that if Mr. Black were present at the trial he would testify that in November, 1910, he made a contract with Terrill for the hauling of Black’s grain and paid Terrill for it, and that he knew nobody else in the transaction; also that Terrill, in the hauling of said grain, used the mules in controversy and said to Black that the mules were his and that he owned them.
Appellant contends that upon the foregoing state of facts the case comes clearly within the provision of section 6128, Revised Codes, relating to fraudulent conveyances, “and therefore the question became one of law for the court and not one of fact for the jury.” Counsel says in his brief: “There may be some question as to whether or not there was an ‘immediate’ change of possession; likewise a question as to the ‘actual’ change of possession, but there can be no question whatever that there was no ‘continued’ change of possession. And we are not contending that the ‘continued’ change of possession contemplated by the statute is such that the property sold shall never again come into the possession of the vendor. The fallacy of such a contention was plainly pointed out in the case of Dodge v. Jones, 7 Mont. 121, 14 Pac. 707; but the admitted facts in this case lead irresistibly to the conclusion that there was no such change of possession as is,necessary to make the transaction good against the creditors of the vendor according to the rule laid down in that ease.” We quote from the opinion of Mr. Chief Justice McConnell in the case cited by counsel: “The statute provides that there shall be an ‘immediate’ delivery, and there shall be an ‘actual’ change of possession, and this'change shall be a ‘continued’ one. But continued how
3. Plaintiff was asked on cross-examination: “Was it generally known that you were the owner of the mules?” Stiles was asked: “Didn’t you suppose Gastineau was working for Terrill?” The witnesses were not allowed to answer. It is now contended that “testimony covering the common understanding
Defendant offered to prove by the witness Brown “that during all the time that the mules were driven by Gastineau and up to the time of the attachment, it was generally under
4. During the course of the argument of plaintiff’s counsel, Mr. Aitken, defendant’s attorney, addressing the court said:
5. The court instructed the jury (Instruction 5) that if they found for the plaintiff, they could allow him the value of the use of the mules from March 15, 1911, to the time of the trial (May 16, 1911), less the expense, if any, of feeding and
6. In support of his motion for a new trial, defendant presented the affidavits of George Moody and T. S. Stiles. Moody declared that Gastineau delivered a load of grain for Stiles at
7. The verdict rendered reads as follows: “We, the jury in the above-entitled action, find the issues in favor of the plaintiff, and find that the plaintiff is entitled to the recovery of the personal property described in the complaint, or its value,, which is fixed and assessed by us at the sum of $440; and we-further find that the plaintiff is entitled to damages assessed by us at the sum of $108.” The judgment recites “that the plaintiff do have and recover of the defendant the possession of the mules [describing them]; and in case delivery cannot be had of said property, then that plaintiff do have and recover of the defendant the sum of $440, the value of the property.”' It is contended that the verdict does not support the judgment,
We find no error in the record. The judgment and order are affirmed.
Affirmed.