52 Minn. 216 | Minn. | 1893
This was an action in the nature of conversion; the defendant justifying a seizure of the property, consisting of carriages, wagons, and sleighs, under an execution held by him as sheriff, and issued upon a judgment against one Whipple. The court below directed a verdict against defendant for the market value of the property, and the appeal is from an order refusing a new trial. Upon the argument here, counsel, for the sake of convenience, grouped the articles in controversy, and we will adopt the same arrangement. 'Group A consisted of articles made by the plaintiff corporation; group B, of articles made by the firm of King-man, Sturdevant & Larrabee; and group C, of two phaetons and a road wagon purchased and placed in stock by Whipple, and included in a bill of sale from him to plaintiff.
1. The carriages and sleighs placed in group A, plaintiff claims, were consigned by it to Whipple, and that at all times he held the same as its agent, and in no other capacity, under a written contract executed by both parties, and which was produced upon the trial. That the articles mentioned in groups A and B were delivered to Whipple under the contract was not questioned, but defendant insists that upon its face the written contract shows the transaction to have been a conditional sale, within the purview of 1878 G. S. ch. 39, § 15, and hence as the instrument, or a true copy, was never filed, as required by section 16, it was absolutely void, as against Whipple’s creditors. This view cannot be sustained. There
2. No good reason can be advanced for saying that the plaintiff could not furnish to Whipple goods manufactured by another concern, and by an oral agreement with him bring the same under the conditions of the consignment contract previously made. This being so, the articles made by Kingman, Sturdevant & Larrabee must be treated as if delivered to Whipple under, and as if expressly mentioned in, the original agreement.
3. In regard to the phaetons and road wagons embraced in group C, the facts were that prior to January, 1891, Whipple had failed to account to the plaintiff for the proceeds of sales made by him under the contract. He had in stock, and for several months had been the owner of, these articles, which he proposed to plaintiff to turn out in satisfaction of its claim, in amount something above their value. An agent of the corporation, after examining the vehicles, accepted this proposition, taking a bill of sale of the same, with the intention and expectation of shipping, with other goods, to plaintiff’s house in Chicago. Upon loading the freight car with the other goods, it was found that no room remained; and thereupon Whipple receipted for these articles as having been received and to be held by him as plaintiff’s property, under the terms and conditions of the original consignment contract. Nothing was done to indicate a change of ownership, except to place upon each article a tag card bearing plaintiff’s corporative name; and in this condition they continued to remain in Whipple’s possession, in his carriage repository, until the morning of April 4th, when — and while the plaintiff’s agent was engaged in crating them for shipment — defendant sheriff seized them under
It is well settled that, where a vendor of chattels continues in possession of the same, his acts and declarations while thus in actual possession, tending to characterize the same, may be given in evidence. Murch v. Swensen, 40 Minn. 421, (42 N. W. Rep. 290.) Part of the testimony received by thé trial court under this rule— that in regard to Whipple’s signs, cards, and letter heads, and also-his statements as testified to by the witness Traphagen — was of very little consequence, one way or the other; but the statements said to-have been made to Peachey, which we have particularly detailed, were of more importance, and, with other evidence affecting the bona fides of plaintiff’s purchase, might have had a material bearing-in favor of the execution creditor, and against the plaintiff. Under-such circumstances rulings of the court excluding this class of testimony would have been erroneous; and undoubtedly it was upon this theory, in anticipation of such other evidence, that the learned, trial court acted when disposing of defendant’s objections. But on the uneontradicted evidence, as it stood at the close of the trial, and. with all of Whipple’s acts and declarations still in the case, there-could have been but one sustainable verdict;' and that in plaintiff’s favor. In other words, the acts and declarations which tended to-characterize the vendor’s possession, standing alone, as they did, in opposition to plaintiffs proofs, would not have warranted a finding in defendant’s favor. If the ruling striking out this testimony was-erroneous, it was without prejudice.
Order affirmed.'
(Opinion published 53 N. W. Rep. 11Í7.)