13 Nev. 376 | Nev. | 1878
By the Court,
It is alleged in the complaint herein that on the seventeenth day of May, 1877, plaintiffs were the owners and entitled to the possession of certain personal property described; that on or about May 12, in Esmeralda county, defendant wrongfully and unlawfully took said property from the possession of plaintiffs, and still unlawfully withholds the same; that on the twenty-fifth day of May, and before the commencement of this action, plaintiffs demanded possession thereof, which was refused, and that said property was of the value of five hundred and forty-four dollars and fifty one cents.
Defendant denied plaintiffs’ alleged ownership and right of possession, and averred that one Flinn was the owner and entitled to the possession. Defendant alleged that he was sheriff of said county, and as such officer attached said property on the seventeenth day of May, 1877, under and by virtue of a writ of attachment duly issued out of the justice’s court in and for township No. 4, in said county, as the property of said Flinn, in an action entitled Traver v. Flinn; that he attached all the right, title and interest of Flinn in such property, and took possession thereof from the agent of one Ollinghouse, subject to a lien for freight, which lien he had discharged by paying the amount due. He denied plaintiffs’ demand, and alleged that the value of the property did not exceed one hundred and fifty dollars.
Plaintiffs recovered judgment for a return of the property, or its value, three hundred and seventy-three dollars. This appeal is taken from an order denying defendant’s motion for a new trial and from the judgment.
The cause was tried by the court without a jury, and the findings of fact were in substance as follows: 1. That on the thirteenth of April, 1877, More, Beynolds & Co. of San Francisco, plaintiffs herein, sold to one John Flinn of Candelaria, Esmeralda county, Nevada, a bill of goods
As conclusions of law from the foregoing facts, the court found that the plaintiffs were entitled to recover from defendant the property described in the complaint, and in case a delivery could not be had, then plaintiffs should have judgment for three hundred and seventy-three dollars, with legal interest from May 10, 1877, and costs of suit.
Plaintiffs recovered, and was entitled to recover, if at all, upon the ground that he had the right of stoppage in transitu, and that he exercised such right while the goods Avere in transit. “ To enable the vendor to exercise this right the goods sold must. be unpaid for, the vendee must be insolvent, and the goods must be in transit.” (Story on the Law of Sales, p. 366.)
“The right of stoppage in transitu is, paramount to any lien against the vendee. Thus it may be exercised to defeat any attachment or execution served upon the goods by
It was not found in terms by the court, that Plinn was insolvent, nor was the court asked to find upon this question. Insolvency is a prerequisite of the right of stoppage in transitu, and the court could not have found for plaintiffs without first finding as a fact from the testimony, that Plinn was insolvent at the time. Some authorities hold that the requisite insolvency must occur between the time of sale and the exercise of the right, but others hold, and we think correctly, that it is sufficient if it becomes known to the vendor after the sale. (Buckley v. Furniss, 15 Wend. 137; Reynolds v. B. and M. R. R., 43 N. H. 580; Benedict v. Schaettle, 12 Ohio St. 515.)
In Tubbs v. Ghirardelli, 45 Cal. 231, it is decided that although actual findings appear in the record, which are insufficient of themselves to support the judgment, yet other findings will be implied in favor of the party who recovers judgment, embracing every fact in issue not expressly found in favor of the party against whom judgment was rendered, or irreconcilable with the express findings.
In the City of Oakland v. Whipple, 39 Cal. 115, the court say. ‘ ‘ But in the absence of our express finding * * * we must presume the implied findings to have been such as were necessary to sustain the judgment.” (Warren v. Quill, 9 Nev. 264; Lovel v. Frost, 44 Cal. 471; Smith v. Cushing, 41 Id. 98.)
In the first place, defendant in his answer sets up the fact that on the seventh day of May, 1877, an action upon a contract made by Flinn was brought in the justice’s court, and that the goods in question were attached in that suit by defendant. These allegations imply that Flinn failed to pay his debt according to contract, from inability or from some other cause. The testimony of Pierce shows that one Olinghouse, a teamster, brought the goods to Candelaria; that the latter went into Pierce’s place of business and inquired for Flinn; that he went in the direction of Flinn’s place, but soon returned, and said he wished to store the goods marked and shipped to John Flinn, as Flinn had refused to pay the freight; that Olinghouse wished Pierce to hold them for freight. Pierce took the goods to hold for the teamster until the freight-money should be paid. Olinghouse indorsed upon the shipping receipts: “Pay Pierce & Yernon the within charges.” Traver, plaintiff in the attachment suit in justice’s court, testified that he knew Flinn expected goods to arrive from San Francisco by Olinghouse’s teams; that he learned they were stored with Pierce & Yer-non for freight; that on the same day he called on Pierce and asked him if he had any goods marked and belonging to Flinn; that Pierce said he had, and that he was.holding them for freight, but had no other claim on them. Traver then told Pierce that Flinn was owing him, and asked if he
The deposition of Samuel L. More, one of the plaintiffs, was admitted in evidence. It was taken under an agreement “that said deposition may be used on the trial of said action, subject to the same objections as if the said witness were there personally present and testifying therein.” The eighth question was this: “ Did you learn of the insolvency of said Minn? If so, what did you do?” Witness answered: “We learned on or about the twelfth day of May, 1877, through Messrs. Pierce & Yernon, of Candelaria, of the failure of said Minn, and they, Pierce & Yernon, at the same time notified us that they had received the goods shipped by us to Minn, and had stored them for us, subject to our order.”
The answer was objected to on the grounds that it was not responsive to the interrogatories; that it was immaterial; that it was hearsay; that there was no allegation in the complaint Avhich could be proven by such testimony.
The first portion of the answer was directly responsive to the question. It was material. It was not hearsay. It tended to support the allegations of ownership and right of possession in plaintiffs; that is, their right to stop the goods while in transit, and was admissible under the pleadings. The complaint was sufficient (Schofield v. Whitelegge, vol. 12 Abb. Pr. R., N. S. 320; Pattison v. Adams, 7 Hill, 126; Bond v. Mitchell, 3 Barb. 304; Vanderburgh v. Van Valkenburg, 8 Barb. 217), and any testimony tending to prove the principal issues, ownership and right of possession, was properly admitted. (Gray v. Nations, 1 Ark. 567.) The first part of-the answer objected to tended at least to prove a special property in plaintiffs in the goods, and that, with the right of possession, is sufficient to maintain this action.
Defendant’s objection was to the entire answer. If the last portion was not responsive, or was open to any of the objections stated, defendant should have objected to that part, or moved to strike out such portion. The objection to the entire answer was not well taken.
In answer to the ninth interrogatory the witness stated: “Immediately upon learning of the failure of Flinn, and that the goods had not been delivered to him, we instructed Pierce & Vernon to draw on us for the amount of the freight, and to dispose of the goods for us, and if unable to dispose of them as directed, then to hold them subject to our order.”
We think the proof was sufficient to sustain the implied finding that Flinn was insolvent, and that he either became so subsequent to the sale of the goods, or that plaintiffs did not learn the fact until after the goods were attached.
“Any well-founded or probable information of such an embarrassment on the part of the other party as to prevent him from honoring his drafts, or meeting the demands of his creditors, is sufficient insolvency to justify the vendor in stopping the goods sold. Butif, through excess of caution, or from misinformation, he make a mistake and stop the goods when the buyer is not insolvent, the buyer would be entitled to claim the goods and an indemnification for all the expenses growing out'of the stoppage.” (Story on the Laws of Sales, p. 369; O'Brien v. Norris, 16 Md. 122; Secomb, Voorhies & Co. v. Nutt, 14 B. Mon. 324; Smith’s Mercantile Law, 678; Lee v. Kilburn, 3 Gray, 595; Herrick v. Borst, 4 Hill, 652; Bayly v. Schofield, 1 M. and S. 350; Shone v. Lucas, 3 Dowl. and Ryland, 223; Chandler v. Fulton, 10 Tex. 2.)
We are now brought to the inquiry whether the goods were or were not in transit, at the time plaintiffs claimed ■them adversely to Flinn.
It is settled by all the authorities that if goods have not been paid for, and the vendee becomes insolvent, the right of stoppage exists so long as they are on their passage, and until they come into the actual or constructive possession of the vendee, or of some person acting for him. The
It is true that Flinn had the right, within a reasonable time after the stoppage, to pay the amount due plaintiffs and take the goods, but as between plaintiffs and defendant, the former were entitled to a judgment for a return of the entire property or its value. The court should have found the fact of Flinn’s insolvency, but as we have seen, such finding is implied in support of the judgment. The tenth and eleventh findings of fact are properly conclusions of law — but no objection or exception having been taken to them in the court below, and no application having been made to correct or amend them, the point cannot be raised for the first time in this court. (State v. Manhattan S. M. Co., 4 Nev. 318.)
The order and judgment appealed from are affirmed.