34 P. 893 | Idaho | 1893
This is an action of claim and delivery, 'brought by plaintiif against defendant to recover possession of certain personal property, to wit, one stallion and one jackass, alleged by plaintiff to have been wrongfully taken from his possession by defendant. The complaint alleges that at the time of the taking the plaintiff was “the owner, in possession, and entitled to the immediate possession” of the property described; alleges value of property, and claims damages for detention. Answer denies ownership of plaintiff, and his right to possession, and also sets up justification under writ of attachment against B. Williams. The ease was tried before the court with a jury; verdict and judgment for defendant, from which, as well as from the order of the district court overruling'plaintiffs motion for a new trial, plaintiff appeals to this court.
The following facts appear from the record: In January, 1892, one B. Williams, being the owner of the property described in the complaint, to wit, one stallion and one jackass, which property was at the time in the care and custody of one Maguire at Moscow, Latah county, Idaho, said Williams (then being at Memphis, Tennessee), executed to plaintiff, under date January 14, 1892, a bill of sale of said property for the consideration (as expressed in said bill of sale) of $800. On receipt of the bill of sale plaintiff presented same to Maguire, and demanded possession of the property. Maguire declined to surrender possession of the property, except upon condition that
The theory of the defendant seems to be that the sale from Williams to the plaintiff was void under the statute of frauds of Idaho, in that it was not followed by an immediate delivery and an actual and continued change of possession of the property sold. Section 3021, of the Eevised Statutes of Idaho, provides as follows: “Every transfer of personal property, other than a thing in action, and every lien thereon, other than a mortgage, when allowed by law, is conclusively presumed if
The measure of damages in actions of replevin, where the property sought to be recovered has a usable value, is the value of the property at the time of the taking, with the value of its use from the time of taking. The instruction upon this point
There was no error in permitting the defendant to cross-examine witness Williams as to the terms and conditions of the sale by him to plaintiff, but we do not think the evidence elicited tended to establish fraud in the sale, or to bring it within the purview of section 3021 of the Revised Statutes. Conceding all that can properly be claimed from the evidence, the plaintiff was a Iona fide pledgee of the property, and as such was entitled to the possession thereof at the time of the taking by defendant. Judgment of district court reversed, and cause remanded for new trial.