17 Colo. App. 200 | Colo. Ct. App. | 1902
Beplevin by defendant in error against plaintiff in error. Plaintiff had judgment, and defendant brings the ease here by writ of error.
The complaint alleged that on the 10th day of February, 1897, the plaintiff was the owner and lawfully possessed of certain specified goods and chattels of the value of $900, and that on that day the defendant wrongfully took them from his possession. The answer denied the plaintiff’s ownership or possession of the property, or the alleged wrongful taking by the defendant, and averred that on the 13th day of July, 1896, The Farmers’ National Bank of Frankfort, Indiana, recovered a judgment in the circuit court of the United States against one J. B. Hindry for $5,473.33; that on the 27th day of January, 1897, the judgment being unsatisfied, a writ of execution was issued thereon, directed to the defendant as marshal of the district of Colorado, and commanding him as such marshal to make the amount of such judgment, interest and costs, which writ the defendant,- on the 10th day of February, 1897, levied on the property in suit as the property of Hindry; and that, at the time of the levy, Hindry was, and long prior thereto had been, the owner of the property. The replication denied ownership in Hindry.
Prom the other evidence adduced by the plaintiff it appeared that after the transaction between Hindry and the plaintiff, the former left the ranch with a carload of horses,, and a general grading outfit ; that the officer making the levy was informed at the time that the plaintiff claimed the property, and claimed to have a hill of sale for it; that after the purchase, some of the Plindry horses were taken by the plaintiff over to his own place; that Henry kept on feeding the Hindry horses the same as ever, hut fed the plaintiff’s stock too; that the’stallion was kept all the time in the same place, and the Hindry horses kept separate from the plaintiff’s horses,-remaining in the same corral they occupied before, and that the machinery and tools remained where they had always been. Mr. Craig, an employee of the plaintiff on his own ranch, was asked this question: “Was it generally known in the community that Mr.
The plaintiff, as evidence of his title, introduced the bill of sale executed to him by Hindry at the time of the transaction between them, although antedated. It hardly supports his claim. It recites a consideration of $540 — the exact sum testified to by the plaintiff — but, otherwise, it differs from his statements in his affidavit. By that paper he claims ownership of twenty-seven head of horses, brood mares and' colts; whereas the bill of sale purports to transfer to him nineteen head of mares and colts, and no horses. He therefore claims eight animals more than, according to his bill of sale, he bought. Again, the bill of sale gives him one mowing machine, but he sued for three; and he wants seventy-five tons of alfalfa hay, when his written title gives him the right to forty, and no more. Finally, in the list set forth in his affidavit, is included one lot of blacksmith tools ; but, referring to his bill of sale, we find that he bought no blacksmith tools at all. That instrument was his own evidence. He introduced it to.prove his purchase, and he is bound by it. According to it, he paid $540 for the articles it enumerates; and, according to his testimony, he paid the same sum for all the articles to which he lays claim. The paper and the testimony can be reconciled only on the supposition that Hindry was so anxious to give the plaintiff good measure, that he threw in eight horses, two mowing machines, thirty-five tons of alfalfa hay, and all his blacksmith tools, without extra charge. If a different line of defense from that relied on had been chosen, the discrepancy between the statement of the transaction, written at the time, and the affidavit and testimony of the plaintiff, might suggest questions which he would experience some difficulty in answering.
However, the sole defense sought to be inter
The case at bar presents no such situation. Where title is the result of a concurrence of certain facts, the facts must be proved to establish the title. The allegation of title involves the allegation of the facts, and a denial of the title includes a denial of the facts. To prove the title, the plaintiff must prove the existence of the facts on which it depends; and if, under a naked allegation of title, he may prove those facts, then the defendant, under a naked denial of title, may disprove them. Evidence of those facts establishes the title, and contradiction of those facts overthrows it. This plaintiff, in order to maintain his title as against the defendant, undertook to show, first, the purchase from Hindry; second, the immediate delivery of the property to him, and, third, its continued possession in him afterwards. If he established the facts of purchase, delivery and possession, he proved his title; if he failed in proof of either of those facts, he failed in proof of his title; but if his evidence made a prima facie case in his favor, the defendant had, under his general denial, the right to show its falsity.— Andrews v. Bond, 16 Barb. 633; Kennedy v. Shaw, 38 Ind. 474; Aultman v. Stitchler, 21 Neb. 72; Nedd v. Thompson, 34 Calif. 39; Young v. Glascock, 79 Mo. 344.
In a suit between the immediate parties, on a contract for the sale of personal property, if the defendant claims exemption from liability on the ground that the price for which the property was sold was more than fifty dollars, and that- there was no memorandum of the sale in writing, and no acceptance or receipt of any part of the goods by the buyer, there is no hardship in exacting from him a special answer
There is no decision in this state which requires a defendant in replevin to plead the statute of frauds; and we have been referred to but one from the outside, in which counsel’s contention finds any support. The case of Bickle v. Irvine, 9 Mont. 251, was replevin. The complaint, as in the case at bar, alleged simply that the plaintiff was the owner and entitled to the possession of the property. The answer, like the one here, denied the allegation, and justified under a writ of attachment issued to the defendant, as sheriff. The defendant offered to show by the cross-examination of the plaintiff’s vendor, that after the sale by him to the plaintiff, he (the vendor) remained in “continuous and open possession and control of the property.” The court, after saying that the transcript was imperfect and failed to show the direct testimony of the witness, proceeded to decide, as an abstract proposition, that the proposed evidence could not be introduced under a general denial. Of course, we do not know what the ruling would have been if the transcript had been perfect; but in so far as the opinion holds that in that ease a special plea of the statute of frauds was necessary, it receives no countenance from a single one of the cases cited in its support, and the reasoning in one (Feeney v. Howard, 79 Calif. 525) is in diametric op
Whether, upon the whole evidence, there was such compliance with the statute as to constitute a sale good against creditors, may well he doubted. For the defendant, the question was raised below, and it is raised here; but, inasmuch as there must be a retrial, we think a discussion of it unnecessary. The court, in its submission of the ease to the jury, misdirected them. Over the objection of the defendant, it gave them the following instruction:
“The court instructs the jury that there is no question of fraud or bad faith on the part of the plaintiff Day made by the pleadings in this case, and you have, therefore, nothing to consider as to this. But the important and controlling question is, whether the plaintiff Day was, in fact, the owner of, and in possession of, the property in question at the time of the levy of the execution on the same by the defendant, J. A. Israel, for The Farmers’ National Bank of Frankfort, Indiana, as alleged in the answer, or whether the property was then the property of J. B. Hindry and in his possession. If you find from the evidence the property was that of plaintiff, your verdict should be for the plaintiff, and in such case it is your duty to assess the amount of damages sustained by him on account of the levy. ’*’
If nothing worse, the foregoing instruction was misleading. The theory of both parties was that the plaintiff had bought the property from its owner, and had paid for it. Upon this theory the plaintiff became, as against Hindry, invested with the title. The question was not whether as between the plaintiff and Hindry, the former owned the property, but whether, as against the defendant, the sale was ef
“The court instructs the jury that the change of possession required on a sale of personal property to make the same valid as against creditors of the seller, must be an open, notorious and visible change, such as to apprise the community, or those accustomed to deal with the seller, that the property has changed hands, and that the title has passed out of the seller into the purchaser. To constitute a visible and actual change of possession it is not necessary that the property be actually moved from one locality to another, if the buyer does such acts as make visible signs of his ownership, and maintains that relation to the property purchased which owners of property generally sustain to their own property. ’ ’ If the foregoing were, even abstractly, a correct statement of the law, it would hardly cure the vice with which the instruction we have been discussing is infected. But it is not correct. The statute requires that the sale be accompanied by immediate delivery, and followed by an actual and continued change of possession. If the evidence showed a delivery at all, it left the time when it took place in uncertainty. Whether it accompanied the sale, or was made some time after-wards, is, at least, doubtful; and it is by no means certain that the plaintiff ever took possession, ex
But where the subject of the sale does not reasonably admit of an actual delivery, the purchaser must manifest his ownership by some other act, and what that shall be is dependent upon the character of the property. Delivery of a stock of goods in a store, and of a stack of hay in a field, would be made differently, and the indicia of ownership in the two cases would not be the same; but the acts of possession must be unmistakable; they must be such as to apprise the community that the title has changed.— Lay v. Neville, 25 Calif. 546; Cook v. Mann, supra.
The question of the sufficiency of the indicia of ownership in this case was not submitted by the in
Aside from the erroneous character of this instruction, its language was so general and indefinite that the jury could hardly regard it as a qualification or explanation of the other instruction, which told them that the controlling question was, whether the plaintiff, having bought the property from Hindry and paid him for it, was its owner, or whether Hindry, having sold the property to the plaintiff, and received the purchase price, was its owner. Reading the plain language of that instruction, and without advice that its apparent meaning was not its real meaning, the jury probably returned a speedy verdict.
The defendant sought to avoid the effect of the instruction we have reviewed by asking the court for others correctly applying the law to the facts, but his requests were refused. "Whether, if they had been given, they would have made the instructions good