Everett v. Taylor

14 Utah 242 | Utah | 1896

Zane, G. J.:

The fact that the vendor, Stewart, sacked the wool, and separated it from, the rest, and actually gave the plaintiffs possession of it at its market price, and that they moved it a hundred feet, and piled it up by itself, certainly was evidence of actual delivery. Their possession appears to have been continuous afterwards. There was no evidence that these acts were not in good faith, — that they were merely colorable. It certainly was fox* the jury to determine whether the possession was actual or colorable merely, and whether it was continuous. Section 2837, Comp. Laws Utah 1888, relating to such sales, is as follows: “Every .sale made by a vendor of goods or chattels in his possession or under his control, and every assignment of good's and chattels, unless the same be accompanied by a delivery within a reasonable time, and be followed by an actual and continued Change of the possession of the thing sold or assigned, shall be conclusive evidence of fraud as against the creditors of the vendor, or assignor, or subsequent purchasers in good faith.” This seotion requires the sale to be accompanied with delivery within a reasonable time, and followed by an actual and continued change of possession, or with an understanding to that effect. The change of possession must be actual, not merely constructive or colorable. And the possession must be continuous in the purchaser, not merely a delivery and .surrender back^ The possession may be delivered by an agent or employé of the vendor and received by such employé or agent, and such agent or employé, may continue to hold the property for his principal. After such possession, the vendee may appoint tbe vendor to bold tbe property for bim as bis trustee or agent, or be may make bim bis employé. Sucb appointment or employment must be in good faitb. Sucb appointment or employment may be regarded as a suspicious circumstance, and may be considered by tbe jury, with all tbe other evidence, in determining whether the possession was taken and held in good faitb. While tbe arrangement between Stewart and tbe plaintiffs for the transportation of the wool by Jolly may be a suspicious circumstance, it should not have been regarded as conclusive evidence of fraud. Tbe jury should have been permitted to consider it with all the other competent, relevant, and material evidence. Godchaux v. Mulford, 26 Cal. 316; Wilson v. Hooper, 36 Am. Dec. 366; Stevens v. Irwin, 15 Cal. 503; Farr v. Swigart, 13 Utah 150. We are of tbe opinion that tbe court erred in charging the jury to find the issues for tbe defendants. Judgment reversed, and cause remanded.

Barton and Miner, JJ., concur.