154 Minn. 277 | Minn. | 1923
Action for the conversion of two Transport trucks, the sole issue being whether plaintiffs became owners of the same through an alleged purchase from one S. J. Bim on December 21, 1920. The cause was tried to the court and findings were made to the effect that plaintiffs were not and never had been the owners of the property, and judgment for costs was ordered in favor of the defendant. From an order denying their motion for amended findings or for a new trial, plaintiffs appeal.
In April, 1920, the King Auto Company was engaged in wholesaling Transport trucks at Mitchell, South Dakota. On the twenty-
On December 2, 1920, the defendant, as sheriff of Pipestone county, levied upon and took into his possession, under a writ of attachment issued against the King Auto Company, the two trucks in question, and stored the same in the Motor Inn at Jasper for safe keeping. Subsequently a judgment was obtained against the King Auto Company in the attachment proceeding, and on February 19, 1921, an execution was issued thereon and placed in the defendant’s hands for collection. On March 9, 1921, he sold the trucks at execution sale, whereupon he paid to the owners of the Motor Inn the sum of $80 for bringing the one truck from Trosky to Jasper and for storage on the two trucks under attachment.
On March 4, five days before the execution sale, plaintiffs caused a notice and demand for possession of the trucks to be served on defendant, claiming to be the owners of the same under and by virtue of a purchase from Bim on December 21, 1920. A reading of the agreement of April 26, and the order for 8 trucks t>yr Bim, discloses that it was not the intention of the parties thereto that title to the trucks should pass until they were paid for. The contract specifically provides that the company will ship vehicles to Bim, with sight draft against bill of lading attached, to be paid, with exchange, upon presentation. Under such circumstances, it is
Tbe defendant testified at tbe trial, in effect, that be had a conversation with Mr. Bim shortly after the attachment levy, in which be told Bim of tbe attachment and asked bim whether be bad any claim on tbe trucks, and that Bim said in reply that be did not, that be bad never accepted them, and that they belonged to tbe King Auto Company. Bim being in lawful possession of tbe vehicles, this testimony was competent. Elwood v. Saterlie, 68 Minn. 173, 71 N. W. 13; Lehmann v. Chapel, 70 Minn. 496, 73 N. W. 402, 68 Am. St. 550; McDonald v. Bayha, 93 Minn. 139, 100 N. W. 679. Tbe witness Iverson corroborated tbe defendant to tbe effect that Bim told bim that be bad never accepted tbe trucks. In giving bis testimony, Bim’s memory was, to say tbe least, very faulty. He was unable to say whether be bad ever bad such a conversation with tbe sheriff. He denied knowing, until shortly before the sale, that the trucks had been attached, in tbe face of the undisputed evidence that they were taken from bis possession, and were of tbe alleged value of $6,000. It. is not claimed on behalf of tbe plaintiffs that, at tbe time of tbe attachment, Bim bad in any way settled with or paid tbe King Auto Company for tbe trucks. Tbe proofs are altogether ample to warrant tbe findings that tbe plaintiffs were not tbe owners of the trucks and therefore were not entitled to recover.
It is unnecessary to review tbe other questions discussed in tbe briefs, as tbe foregoing disposes of tbe case.
We find no error in tbe rulings upon tbe admissibility of evidence.
Affirmed.