10 Nev. 416 | Nev. | 1876
Lead Opinion
By the Court,
It is claimed by appellants that there was not sufficient evidence, iipon the trial of this case, to show such an actual and continued change of possession of personal property as the law requires in order to take the case out of the operation of the statute of frauds.
The property; consisting of a team of ten animals and three wagons, with harness, etc., was purchased by respondents of Lockw.ood and Davidson, on the first day of January, A. D. 1875, for- a fair consideration. At the time of the purchase the team was hitched up and was standing in front of the Idaho Stable. Lockwood and Davidson, after executing a bill of sale of the team, delivered, the possession of it to B. T. Gray, one of the respondents, who drove it over to Shipley’s corral, and there unhitched and unharnessed it, assisted by a young man named McCall. The next morning Gray employed one William Meadows, who had been the teamster for Lockwood and Davidson, to drive the team to ¡the Lockwood and Davidson ranch for some coal-sacks that he had also purchased with the team. Gray states, as a reason for the employment of Meadows, that he had ascertained the night before that McCall did not know the way to the ranch, and not knowing the way
From this brief statement of tbe evidence offered by respondents, it will be seen that tbe facts of this case are not, as. is claimed by appellants, analogous to Hurlburt v. Bogardus, for there the property, as stated in the opinion of the court, “remained in charge of the same person, at the same place, and was used in the same manner after as before such purchase.” (10 Cal. 518.) Nor similar to the case of Doak v. Brubaker, where “the cattle were left where they were before tbe execution of the mortgage,’ and under tbe control and charge of the same herdsman.” (1 Nev. 222.) Here actual possession was taken by the vendee. It was open and unequivocal, substantial and continuous, and was not taken to be surrendered back, if tbe testimony of respondents was true. The mere fact that Gray rode on the wagon is, as was argued by counsel, of but little significance. It was not, of itself, such an act as was calculated to give notice to third persons; so the mere fact of assisting to turn the wagon around tbe next day, or assisting in tbe loading of the wagon, were, of themselves, of but little importance. But all tbe facts and circumstances from the timé of the purchase must be considered in the order and manner in which they occurred, and when this is done it does appear that Gray exercised such acts of ownership as is usual for persons who own that species of property. Independent of tbe reasons assigned by Gray for tbe em
We tbink there was sufficient testimony in this case to preclude tbe court from declaring tbe sale fraudulent in law, and tbe jury to whom tbe question was fairly submitted, and whose province it was to decide, found that it was not fraudulent in fact. Upon a review of tbe whole case we are of tbe opinion that tbe rulings of tbe court were correct.
Tbe judgment and order appealed from are affirmed.
Dissenting Opinion
dissenting:
I feel obliged to dissent from tbe opinion and judgment of the Court in this case, and in order to explain tbe grounds
It is to be borne in mind in this connection that the burden of proof was on the plaintiffs to show that the sale was accompanied by an immediate delivery and followed by an actual and continued change in the possession of the things sold; and it is further to be observed that all the circumstances attending this sale and going to show a change of possession were within the knowledge of B. T. Gray, one of the plaintiffs, upon whose testimony their whole case rests. Testifying in his own behalf, it is to be presumed that he told every material circumstance and represented it as favorably to himself as the truth would warrant. It is, therefore, not only true as a general proposition, but especially true in this case, that we are bound' to presume that there was no circumstance at all calculated to manifest a change in the possession of this property beside those he has told us, and as to them that they were no more significant than he has described them. Tested by these principles of interpretation what does the case of plaintiffs amount to ?
It appears that the vendors of the property in controversy — Lockwood and William Davidson — had been residing for a period of more than eight months prior to the sale on a ranch in the neighborhood of Eureka, engaged in the business of manufacturing and selling charcoal. Living with them and in their employ were E. Davidson, brother of William, and several other men. The mules, wagons and harness, which are the subject of this litigation, were used in hauling charcoal from the ranch to Eureka, and were in the immediate charge of William Meadows, as driver of the team, for some time prior to, and up to and including the day of the sale, January 1, 1875. What occurred on that day is stated in the opinion of the court. What occurred on the two following days and up to the time of the levy by the sheriff will be more particularly adverted to in the course of this opinion.
An actual change in the possession of the property was
In the opinion of the Court it is held that the cases of Hurlburt v. Bogardus (10 Cal. 518), and Doak v. Brubaker (1 Nev. 222), are not authorities in point, because, and only because, in those cases there was no actual change of possession to begin with, while in this case there clearly was. But I consider, notwithstanding this difference in the circumstances of those cases, that they are nevertheless very clearly and decisively in point. Two things must concur to give validity to a sale of personal property: there must be an actual change of possession, and that actual change must
The case of Hurlburt v. Bogardus was identical with this, except that the driver of the team was discharged by the vendor and hired by the vendee on the spot, without being sent away for a night to be taken back in the morning, and except that the vendee did not ride a short distance with him next day, nor help him hitch up or turn his team the day following, nor help others to load his wagon. If I can show, by all the reason of the authorities, that these circumstances are of no significance, as I think I can, then that case is in point, and the language of the decision applies to this case. The court in their opinion say: “In this case there was no such actual and continued change in the possession of the property under plaintiffs’ purchase as to take
Judged by the authority of Stevens v. Irwin alone, it seems to me the conclusions of the Court in this case are erroneous; but it happens that the very author of that opinion, while the court was constituted of the same members, had occasion to apply its principles to a case more nearly resembling this, but in all its circumstances immeasurably stronger in favor of the vendee. I allude to the case of Engles v. Marshall, 19 Cal. 320. In that case, at the close of the trial in the district court, the judge instructed the jury, in plain terms, to find a verdict for the defendants, because the evidence did not show a delivery and change of possession of the property sold. This instruction was, of course, erroneous, if there was any testimony in the case tending to show a change in the possession of the property actual and continued within the meaning of the law. (That there was an immediate delivery was not disputed.) The right of a party to have an issue of fact submitted to the jury is absolute when he has produced any evidence tending to establish it. His right to have the verdict sustained, which is the question here, is not absolute. Consequently if that instruction, taking the decision from the jury; was correct, it may be said a fortiori the court could no.t, in the exercise of a legal discretion, have refused to set aside a verdict for the plaintiff if the jury had been allowed to find one.
These being the facts assumed to be true, Judge Baldwin says, Field concurring: “Upon examining the record in this case, we think the judge below did not err in instructing the jury that the facts showed no valid sale, for want of such change of possession of the property in controversy as is required by the statute of frauds. The property seems to have remained, to'all external appearances, in the same condition in which it was before the sale, with nothing to notify third persons of the sale or of the claims of the new owners.” He then quotes the opinion in Stevens v. Irwin, and adds: “An application of these principles to the evidence shows that the case of the plaintiff is within the statute of frauds.”
This shows what the authors of the decision which this Court assumes to follow, deemed to be the essence and pith of the doctrine in question, and the facts of that case show what they considered necessary to meet its requirements. I undertake to say that for every act done by Gray in this case to manifest to the world a change of ownership of the property in controversy, two acts were done in that case of more publicity and of greater significance. And let it be observed, particularly, that all that passed between the vendee and his servants, and the actual notice communicated to individual third parties, though they were more numerous in both classes in that case than in this, was held to be no notice to third persons — the meaning of the rule being that such notice can only be imparted by the changed status of the property as shown in its situation, or custody, or employment.
This Court, then, in basing its decision upon the authority of Stevens v. Irwin, must put a construction upon that opinion very different from that of its authors. “Here,” this Court says, ‘ ‘ actual possession was taken by the vendee, ” which I admit; but that “it was open and unequivocal, substantial and continuous,” or anything but formal and temporary, I deny. That it “was not taken to be surren-
"What is said by the Court seems to imply that Gray’s reasons for re-employing Meadows are something in his favor; but I submit that they have nothing to do with the question, If he changed the possession of the property openly and ostensibly, he needed no excuse; if he did not, nothing would excuse him. If excuses would serve, Engles and Hamilton had much more substantial ones. To have discharged all the employees about the business of a daily stage line, and moved the way-stations, must have occasioned very serious loss and inconvenience, and was a much more plausible excuse, moreover, than to say it was necessary to send a team of ten mules and three wagons twenty miles into the country for a few coal-sacks, and that no one but Meadows could find the way.
The Court admits that the acts done by Gray, after Meadows was put back in charge of the teams, were of little importance by themselves, as evincive of his claim of ownership, but argues that they have some factitious importance by reason of the order of their occurrence and their relation to the temporary displacement of Meadows. I think the Court might, with the sanction of the authorities, very safely have said that they were in themselves of no importance whatever. Is it an open and unequivocal act of ownership to ride for a short distance on a lonely road with the driver of a wagon, or to go to a lonely place and “help” to hitch up a team? Would any one who knew that Meadows had been driving those teams on that road, and in that employment for the vendors, have even conjectured that Gray was a purchaser of the property, if he had happened to see him taking that ride or helping to hitch up? "But nobody did see him, and nobody knew of it, or had an opportunity to know of it, except Meadows, and
Now, how did these acts, of no importance in themselves, derive any importance from the order of their occurrence and their relation to a temporary change in the custody of the property with which they had no visible connection nor any connection whatever, except in the memory of Gray and Meadows? I confess that I cannot comprehend it. I can understand how a number of facts, each having some probative value, may, by aggregation, amount to satisfactory proof; but when in themselves they have no value whatever, I cannot understand how they can acquire an aggregate value by any amount of shuffling or combination. As to the other branch of the prop'osition, that some mysterious influence emanated from the temporary discharge of Meadows — an act immediately undone — and imparted life and vigor to circumstances, otherwise meaningless, in the sight of the world, I can only regard that as a new and mistaken application of the text, “A little leaven leaveneth the whole mass.”
But the Court further says of this property: “It was at all times, after the purchase, under his (Gray’s) direction and control, and was never in the possession of either of the vendors.” This is true, but the first part of the proposition is only true in the sense that his servant was using it according to directions privately communicated to him, and the whole proposition would have been equally true in Engles v. Marshall, or Doak v. Brubaker. And it might have been said in those cases, with equal truth, that the vendees “exercised such acts of ownership as is usual for
As to the case of Godchaux v. Mulford, cited by the Court, the only general deduction from that case applicable to this is, that a subsequent employment of the vendor of goods by the vendee, in the subordinate capacity of clerk or salesman, is not absolutely and under all circumstances incompatible with an actual and continued change of possession. All that was actually decided was, that under the peculiar circumstances of that case it might be left to the jury to say whether the change of possession ivas sufficiently manifested. But this case is no more to be compared to that than darkness to light. ' There the sale was of goods in a store, and a lease of the store. Immediately after the execution of the papers, Kraft, the vendor, left the store and the town, and ivas absent three weeks; the door communicating with his dwelling was closed by nailing boards across it; his sign was taken down and replaced by that of Godchaux Brothers, the vendees, over the front of the store, and Godchaux and his clerks, strangers to the place, took entire charge. At the expiration of three weeks, and after all these acts, so well calculated to manifest a change of ownership, Kraft was employed as a clerk in the store, but under Godchaux and along with another of his clerks, who both remained there and were present when the sheriff levied his attachment. It certainly does not follow that because that was held to be a case for a jury, every case must be left to a jury; and Engles v. Marshall proves the contrary. Moreover, it does not follow, as the Court infer, that if the vendor may be employed after the sale in a subordinate capacity, therefore and a fortiori his servant may be so employed. If before the sale the vendor is in a position of authority and control, and after the sale is manifestly in a position of subordination to another, that of itself indicates a change in the status of the property; but if the servant’s outward and ostensible relation to the property is exactly the same before and after the sale, there is noth
But if that had been the case, I venture to say the Court would not have left the question of change of possession to the jury. For what do the Court say ? ‘ ‘ He cannot be allowed to remain in the apparently sole and exclusive possession of the goods after the sale, for that would be inconsistent with such an open and notorious delivery and actual change as the statute exacts, in order to exclude from the transaction the idea of fraud. But if it be apparent to all the world that he has ceased to be the owner, and another has acquired and openly occupied that position; that he has ceased to be the principal in the charge and management of the concern and become only a subordinate or clerk, the reason of the rule announced in the statute is satisfied.”
The case of Clute v. Steele has very little application to this case. It decides, for one thing, that a change of possession which lasts only one day is not a continued change, and so far is against the plaintiffs here. But it does not decide, nor even touch upon the point, what acts are necessary to evidence a change of possession. There was no question in that case that Clute had been in the open, notorious and exclusive possession of the property for at least one and perhaps two days before a suit was commenced or an attachment issued.
The case of Ford v. Chambers differs from this in many particulars, and especially in this fact, upon which the Court .in their opinion lay particular stress, that the. vendee took the actual and ostensible control of the store, selling goods to customers and giving orders to the clerks, who, the Court say, manifestly acted under his orders. But it differs in another most important particular. "When the sheriff came
I think the judgment should be reversed.