27 Colo. 414 | Colo. | 1900
delivered the opinion of the court.
The subject-matter of controversy in this action is the ownership and right of possession of a stock of merchandise at Glenwood Springs. Up to July 18,1896, Magnan & Company owned this stock, as, also, another at Aspen. On this date they sold both stocks to appellant, who thereupon took possession. At this time Magnan & Company were indebted to appellees. For the purpose of paying this indebtedness, the latter claimed the following mutual arrangement was effected: The transaction between appellant and Magnan & Company was rescinded, and the stocks of merchandise returned to A. U. Magnan, of Magnan & Company, who, in turn, transferred the same to the appellees. On behalf of appellant it is claimed that the subsequent arrangement upon which appellees rely, so far as they were concerned, only included the Aspen stock, and as to the Glenwood stock, the arrangement was that appellant agreed to sell the same to A. U. Magnan upon certain terms and conditions, which he has not fulfilled. What the arrangement was with respect to the Glenwood stock is the controverted question of fact. The evidence on behalf of appellees, if competent, tended to prove that the transaction by which they became vested with the title to the stock in controversy was substantially as they claimed, and that they have complied with their agreement. On behalf of appellant the testimony tended to establish his version of the arrangement, and that A. U. Magnan has not performed his agreement with him, under which he was to purchase the Glenwood stock. Numerous errors are assigned, based upon the ruling of the court in giving and refusing instructions, and the admission and rejection of testimony, which makes it necessary to give a brief synopsis of the testimony received, the offers rejected, and the substance of some of the instructions given and refused.
At the time the alleged tripartite agreement was made, upon which appellees base their right to the Glenwood stock, a bill of sale was executed by appellant to Magnan for the
At the 'conclusion of the testimony on their behalf, appellant moved for a nonsuit, grounds for which, so far as necessary to notice, were to the effect that the vendee of personal property in the actual possession of another claim
By instruction No. 21, tendered by appellant and refused, a request was made to instruct the jury to the effect that the burden rested with appellees to establish their right to the possession of the property in dispute, at the time of the commencement of the action, by a preponderance of the evidence.
By another instruction, given at the request of appellant, the jury was advised that appellees could not maintain this action unless they were entitled to the immediate possession of the goods in controversy at the time it was commenced.
By No. 4, the court advised the jury the grounds upon which appellees rely for a recovery, as stated in substance in the replication, prefacing it with this statement: “ Plaintiffs, by their reply, give us a history of the transaction and claim.”
' The first point made by counsel for appellant is, that parol evidence was not admissible to prove that the mutual arrangement claimed by appellees to have been entered into included a transfer to them of the stock in question, for the reason that the bills of sale executed at that time only described the Aspen stock, and their terms could not be contradicted by parol contemporaneous evidence in the absence of an averment of fraud or mistake in their execution. The rule that “ parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument,” which is invoked in support of this proposition, is not applicable. The transfer of personal property by sale, need not be evidenced in writing. Neither bill of sale purported to be a settlement between the parties to the tripartite agreement, or as evidencing its terms and conditions. Appellees claimed that by this agreement both stocks were transferred to them.
Counsel for appellant contend that the motion for nonsuit interposed at the conclusion of the evidence in chief for appellees, should have been sustained, for the reason that by the terms of the tripartite agreement, the contract with respect to the Glenwood stock was merely executory, and that the failure of appellant to deliver possession of this stock would not make it the subject of replevin; in other words, that for a breach of contract of this kind, the remedy of appellees would be an action for damages, instead of one for the recovery of the specific chattels claimed to have been purchased. When this motion was interposed, the testimony tended to establish that the contract on behalf of appellees had been fully performed ; that appellant had accepted the considerations for which he was to make the transfer of the Glenwood stock; therefore, the contract was no longer executory, but fully completed. If the testimony introduced on behalf of appellees on this subject was true, they were the absolute owners of this stock, and entitled to its possession, and could,
In support of this motion it is also claimed by counsel for appellant, that appellees cannot maintain this action upon the strength of a transfer of the stock from Magnan to them, because the owner of personal property cannot sell his right or title in it to another while it is in the actual adverse possession of one who claims title to it. If appellees had established no right to the ownership and possession of the stock in question, except that based upon the bill of sale from Mag-nan to them, and the alleged execution of the agreement with respect to this stock between Magnan and appellant, the question raised would be fairly presented for consideration. They do not, however, rely upon those matters alone. Their contention was, that by the terms of the tripartite agreement, the stock had been transferred to them. The evidence tended to establish that they had fulfilled their part of the agreement, and under the authorities last above cited, they were entitled to maintain this action independent of any rights which they may have acquired by the subsequent transfer of Magnan to them of this stock. A motion for nonsuit cannot be sustained when the evidence tends to prove a contrary state of facts from those relied upon in support of such motion, when such evidence is sufficient to support a state of facts entitling the party against whom the motion is made to maintain bis action.
Appellant complains because he was not permitted to show that the property upon which he accepted a deed of trust from Magnan as one of the considerations which he was to receive for the transfer of the stock in dispute, was incumbered by an attachment at the time he accepted the instrument in question. It appears that this deed of trust had been accepted by him, but he did not offer to show that he had accepted it in ignorance of the attachment, or that upon discovery of its existence, he had offered to reconvey the property covered by the deed of trust. It also appears that at the time of the trial
He also assigns error upon the refusal of the court to permit him to offer what he claims was competent testimony. The offers in this respect were to the effect that the consideration which he was to receive for a transfer of the Glenwood stock had never been paid, without specifying what the testimony would be tending to prove this conclusion, or the ultimate fact upon which he relied to support his contention upon this point. This offer was, therefore, properly rejected.
It is urged that instruction No. 2, given by the court of its own motion, is erroneous, because it required the appellees to establish the facts entitling them to a recovery by a fair preponderance of the evidence, and failed to state that their right to a recovery must be limited to the facts established and existing at the time the action was commenced. For these reasons, it is urged that instruction No. 21, tendered by appellant, should have been given, because it limited the testimony to a preponderance, and further stated that the rights of appellees must be determined by those existing at the time when they commenced the action. Regarding the latter criticism, it is sufficient to say that by another instruction, requested on behalf of appellant, and given, the court did, in effect, direct the jury that the rights of appellees to the possession of the property in dispute were those which the testimony established as existing when the action was begun. So that appellant cannot complain of either of the instructions noticed in this respect.
Regarding the criticism that the weight of the testimony by which appellees were required to establish the burden of proof cast upon them should not have designated that they must establish the facts upon which they relied for a recovery by a fair preponderance of the evidence, it is sufficient
Objection is made to instruction No. 4, because it gave, in substance, the statements of the replication upon which appellees relied for a recovery as against the affirmative averments of the answer of appellant, without stating that this was what they claimed to be the facts. It is claimed that the court, by stating that in this reply appellees gave a history of the transaction, was, in effect, assuming that this history was true. We do not think the instruction complained of is susceptible of this construction.
Other instructions given by the court which, it is claimed, were erroneous, and also instructions refused, which counsel for appellant claimed should have been given, we will not undertake to notice in detail, for two reasons: (1) from what has been said it is apparent those given by the court were correct; and (2) those refused were embodied in the ones given.
In conclusion, and in answer to the proposition earnestly urged by counsel for appellant, that replevin could not be maintained for the goods in dispute, it is sufficient to say, that by instructions requested upon his behalf and given, the case was submitted to the jury upon the theory that if certain facts were established, the verdict must be in his favor. The findings thereon were adverse to his contention. The evidence fully sustains the findings made by the jury on the questions of fact submitted for their determination under these instructions. It therefore becomes unnecessary for us to pass upon the question of whether, if certain conditions existed, the action could not be maintained, because the trial court appears to have adopted appellant’s theory regarding his defense. Whether this was a correct one or not, is im
Affirmed.