152 Iowa 260 | Iowa | 1911
The defendant, Weinstein, became indebted to the plaintiff bank and absconded. Thereafter said plaintiff sued out an attachment for the collection of its claim, and caused the same to be levied on a large mass of scrap iron lying upon the railroad right of way in the town of Dysart on the theory that said iron was the property of Weinstein, and subject to levy at the suit of his creditors. Soon after said levy, Dan Dally intervened in the attachment proceeding, claiming to be the owner of the iron from a date prior to the levy of the writ, and asking that said levy be discharged. In explanation of his claim of ownership Dally alleged that prior to said levy and prior to the beginning of the attachment suit Wein
Again, delivery or change of possession does not necessarily mean that the property shall he moved from the place or situs in which it exists at the time when it is sold, mortgaged, or pledged. The change in possession, especially where the property is being kept or stored upon premises which are not in the possession or control of the seller or mortgagor, may he such only as is reasonably practicable, considering the nature and character of the thing sold or mortgaged. Pope v. Cheney, 68 Iowa, 563; Stewart v. Smith, 60 Iowa, 278; Thomas v. Hillhouse, 17 Iowa, 67. The subject-matter of the transaction in this case was seventy-five tons of scrap iron lying in a heap upon the premises of the railroad company. It was manifestly incapable of delivery in the ordinary sense of passing it from hand to hand and any act which amounted to a symbolical delivery or surrender of the control of the property to the -purchaser or pledgee was sufficient. As we have seen, Weinstein did surrender control of the mass by stipulating that the sales or shipments therefrom should be made by the bank or by its president, and it is also shown by the railway agent that such • stipulation was observed and carried into effect in that all shipments were made in the name of that officer. Moreover, even if the delivery or change of possession were originally defective, if the First National Bank, acting upon the authority of the pledge given to it, thereafter assumed the possession and control of the property before attachment, its right to hold the same could not be divested by the levy. It appears without controversy that, before this action was begun, the bank, acting under the terms of the pledge, had sold the iron to Tally and given him a bill of sale thereof which had been
Counsel suggest that .the action being at law the finding of the court must be given the effect of a jury verdict, and this is true. But a verdict which is without evidence to sustain it will be set aside on appeal, and this, we think, is the condition of the record before us. The precedents relied upon by the appellee are not in point. In each of the cases referred to the mortgagor or seller was in the actual possession and control of the property in question. The utmost to which any of them go in the direction of plaintiff’s position is to hold that the possession of an employee acting under the orders of his employer is in legal sense the possession of the latter. All this may be
It follows that the judgment appealed from must be, and it is, reversed and cause remanded for further proceedings in harmony with this opinion. — Reversed.