61 P. 686 | Kan. | 1900
The opinion of the court was delivered by
This was an action of replevin of a stock of goods, brought by the plaintiff in error, T. H. McManus, against the defendants in error, Jacob "Walters and Conrad Sell. The most material claim of error is that the court, in its instructions to the jury, misstated the theory on which the plaintiff based his right to recover the property, and also refused a request for instructions which correctly stated the theory of the claim made by him, and to the establishment of which claim his evidence was directed. The plaintiff claimed to be the owner of the goods, but admitted that he had made a conditional sale of them to the defendants, which conditions, as he claimed, had not been complied with by the defendants. The instructions of the court attributed to the plaintiff a claim of sale of the goods with an express reservation of title until compliance should be made with certain conditions. The plaintiff did not ask that the jury be instructed on the theory of an express reservation of title, but did ask for instructions on the theory of a reservation of title inferable from the facts and circumstances of the case.
To determine the character of the plaintiff’s claim a brief statement of the evidence on his part will be necessary. The plaintiff lived and did business at Newton, Kan. He owned the stock of goods in question, which was at Marion, Kan., and in charge of Jacob Walters, one of the defendants, as his agent. Walters and Conrad Sell, the other defendant, de
The bill of sale and the notes were signed preparatory to delivery, and the parties met in a law office to complete the transaction. The plaintiff delivered the bill of sale and the defendant Walters handed the plaintiff $300 of the cash payment. The plaintiff objected that the amount was not what had been agreed upon. Walters said that it was all he had at that time, but that he would pay the remainder to plaintiff at his home in Newton in a very few days. The plaintiff declined to accede to this change of agreement and demanded the return of the bill of sale. Walters at first objected to returning the bill of sale, but handed it back, upon being advised by the attorney present that it should be done. The parties then separated, with the statement by Walters that his inability to pay the full amount agreed on would be temporary, and that he would presently pay it all, the plaintiff thereupon stating that he would deliver the bill of
The plaintiff returned to Newton and found one of his children suffering a serious injury, from the effects of which it died in about a week thereafter. During this time Walters remitted $200 more to the plaintiff and also called on him for the purpose of a conference concerning the payment of the balance and the closing up of the transaction. The plaintiff informed him that on account of the misfortune in his family he was not in a condition to attend to the business, but stated that as soon as he could do so he would go to Marion and close the matter out. Soon thereafter he did go there, but the parties were unable to agree on terms for the completion of the transaction. In one of his conversations there, Walters admitted that the goods still belonged to the plaintiff. During all this time the defendant Walters was in possession of the stock of goods and engaged in the sale of it, as he had been before he opened negotiations for its purchase.
The above summary of facts was in substance the testimony of the plaintiff. It was contradicted in many particulars by the defendants. We, however, are not concerned with the truthfulness of the statements of either party or their witnesses. The plaintiff was entitled to an instruction to the jury presenting his theory of the case, and the question therefore is, Do the facts, as testified to by the plaintiff, present a claim of implied reservation of title or a reservation of title by express agreement? We are entirely clear that they present a case of the former and not of the latter. Indeed, the counsel for the defendants in error, in their opposition to the theory of implied
"When the plaintiff had accepted a part payment of the cash payment, when he knew the residue was not to be paid at that time, on the promise of defendants to pay within a short time, and then surrendered possession of the stock of goods, knowing same were to be sold in the usual retail trade, and that new goods were to be put in the stock and the Sells goods were to be moved from Lehigh and placed in the same general stock, by which the identity of the goods sold would be lost, and the means of determining the particular article sold would be made well-nigh impossible, and furnished advertisements for the parties to whom he had sold, and had gone away without receiving the payment, and then advertised in his home papers that he had sold out to Walters, it would take an express agreement to reserve a title in the plaintiff under these facts.”
“When there has been no manifestation of intention, the presumption of the law is that the contract is an actual sale, and that the transfer of title takes place at once, if the specified thing is agreed on, and is ready for immediate delivery. This is universally true where the price has been paid or the goods have been expressly sold upon credit, but where the sale is for cash, payment, it has been said, must precede the transfer of title. The better doctrine, however, appears to be that the transfer of title takes place immediately upon the conclusion of the contract, notwithstanding the fact that the transaction is for cash, the seller having a lien for the price which entitles him to retain the possession of the chattel until the price is paid. And in those jurisdictions in which, when the sale is for cash, payment is held a condition precedent, it has been universally held that the seller waives the condition when he makes complete delivery without expressly reserving title to himself.”
There can be no question as to the correctness of the above statement of the law. It will be, however, observed that its application to any particular case is hinged on the fact of the delivery by the seller to the buyer of the thing sold. Counsel for defendants in error, therefore, beg the question in the case. There was no delivery of the stock of goods by the plaintiff to the defendants in error. The defendant in error Walters simply retained the possession of the goods as he had for many months before when he was holding them as the agent of the plaintiff in error, or, to state it in a way to which the defendants in error can take no possible exception, the facts of the case, as testified to by witnesses on both sides, raised nothing more than a question as to whether the possession of Walters was a continuance of his former possession
“When payment of the purchase-money and the delivery of the goods are expressly or impliedly agreed to be simultaneous, and the payment is omitted or refused by the purchaser upon getting possession of the goods, the vendor may reclaim them, the delivery being merely conditional. To constitute a conditional delivery, it is not necessary that the vendor should declare the condition in express terms at the time of delivery. It is sufficient if it can be inferred from the acts of the parties and the circumstances of the case that it was intended to be conditional.”
In Tiedeman on Sales, section 201, it is said:
“No particular words or forms of expression are really necessary for the creation of a conditional sale. Any words which indicate an intention to annex a condition to the sale will be sufficient. Such phrases, however, as ‘on condition/ ‘provided/ ‘if it shall so happen/ etc., are found in constant use, in the making of conditional sales, and, if employed, will usually remove any doubt as to the sale or transfer being conditional. But whether these expressions are used or not, if the intention of the parties to make the sale dependent upon the happening of some event or the performance of some collateral obligation can be ascertained from the expressions of the parties, it will be a conditional sale, it matters not what may be the language used.”
Authorities to the same effect could be multiplied. We doubt, indeed, whether a single one to the con
Unless there was such conduct on the part of the plaintiff as to disentitle him to make the amendment he asked to make, or unless the making of it would have been to the material prejudice of the defendants, the court should have allowed it to be made. The opposition to the making of the amendment was stated to us by counsel for defendants in error, and, we suppose, was likewise stated by them to the court below, to be that the plaintiff had the time intermediate the
Now, while the making of amendments is very largely in the discretion of the trial court, it should, nevertheless, allow amendments in furtherance of justice to a party, if the making of them will work no injustice to the other party; and where the effect of an amendment will be to save to a party $1000, a fifth of the value of the thing in dispute, we think it should be allowed, notwithstanding a lack of diligence in applying for leave to make it. The laches of the one party is only of concern to the opposing party in the event he has suffered some loss or been put to some disadvantage because of it. It is proper to refuse leave to amend pleadings when asked for by negli
The judgment of the court below will be reversed, with directions for a new trial.