5 Mont. 427 | Mont. | 1885
This is an action for claim and delivery of four horses, a wagon, a whip, two sets of harness and eight cords of wood. The plaintiff alleges that the defendant unlawfully took, on the 13th of September, 1882, this property from the possession of the plaintiff; that demand was made of defendant on the 18th of September, and a refusal on his part to deliver the same. The defendant justfied as the sheriff of Silver Bow county, alleging that, at the time named, the property was owned and possessed by Charles R. Cutler; that Cutler was then indebted to Foster and Murphy in the sum of $416.24; that by virtue of a writ of attachment in their favor placed in his hands, he, as sheriff, on September 13, 1882, seized and took into possession the property described in the complaint, except the eight cords of wood, which he denied taking; that afterwards, and before the beginning of this suit, they obtained a judgment against said Cutler in said suit, on which an execution was issued, and the property, except said wood, was sold by him, as sheriff, to satisfy the same, and that he did not convert any wood whatever. The plaintiff replied that, being a resident of Silver Bow county, on or about the 14th of September, 1882, and after the levy of the said attachment, the plaintiff, under oath, claimed the property described in the complaint, served a written notice upon the defendant, and made a demand for the return of the property, under oath. And that this action was commenced after expiration of ten days therefrom. The plaintiff
At the close of the plaintiff’s testimony, the defendant moved the court for a non-suit, for the following reasons:
1st. That Foster and Murphy, named in the pleadings, are shown by the pleadings to have been creditors of the said Culter, the vendor of the property, at the time of the sale, and that it was proven by plaintiff that the sale from Culter to him was made on July 21, 1882, between 11 o’clock in the forenoon and 2 o’clock in the afternoon, and a delivery of possession was not made till the 22d of the month, and, therefore, no immediate delivery of possession, sufficient to satisfy the statute of frauds in such case; and said' pretended sale was, therefore, void as against said Foster and Murphy.
This motion the court overruled, to which the defendant excepted, and this is assigned as the first error, by the appellant.
The second error assigned is: “That the court erred in refusing to give defendant’s instruction number 3, which is as follows: ‘The jury are instructed that if they find from the evidence that Cutler sold said property to O’Gara, on the 21st day of July, 1882, and did not deliver possession thereof until July 22, 1882, then they will find there was no immediate delivery of possession of said property, and said sale is void as against Foster
The third error assigned is: That the evidence was insufficient to justify the verdict, in this: The evidence shows that there was no continuity of possession by plaintiff after the sale and pretended delivery of possession; that it shows that on the 22d of July, 1882, when plaintiff claims to have taken possession, and used the team that day, he then employed David Cutler to drive, and who continued to drive the team thereafter; and said David Cutler had been driving it after the 22d, and that Charles Cutler, the vendor, after the 22d, drove the team for a week or more; and the evidence shows no continuity of possession by plaintiff, and the sale for such reasons was void as to Foster and Murphy, who are shown to have been creditors of Charles Cutler, the vendor.”
The fourth error assigned is: “ That the verdict was contrary to law, for the same reason as shown in the third assignment of errors.”
Thus it will be seen that the question arising out of the time and circumstances of the delivery of the property is the main one in this case. In other words, was there a legal delivery of the property by Cutler to O’Cara, on the day after the sale, rendering the levy of the attachment of the creditors, Foster and Murphy, void?
The statute of frauds provides that every sale of goods and chattels, unless the same be accompanied by the immediate delivery, and followed by an actual and contin
The appellant takes the position that the phrase, “immediate delivery and change of possession,” means the instantaneous delivery and change; that the sale, delivery and change must be simultaneous acts, allowing no lapse of time to intervene between the sale and the delivery and change of possession. And upon this theory the third instruction,-which was refused, is by him held to be correct, while the appellee insists that the immediate delivery and change are such a delivery and change as the circumstances permitted, taking into consideration the nature of the property, its situation at the time of the sale, the position or location of the parties at that time, their distance from the property sold, and the acts necessary to be done to complete the collection of the property, the traveling to it, and placing it in a position to be put in the possession of the vendee. What might be regarded as an immediate delivery of one kind of property might not be regarded as an immediate delivery of another kind. Small articles in the possession of the vendor at the place of sale are capable of instantaneous delivery, while large articles, at a distance from the place of sale, necessarily will not admit of instant delivery. This has been well stated in Lay v. Neville, 25 Cal. 553: “ It is not intended by the fifteenth section of the statute of frauds to make a sale void, as against the creditors and purchasers of the vendor, unless the vendee shall perform in every case what might, in some cases, be an impossibility. It was intended that the vendee should immediately take, and continuously hold, the possession of the goods purchased, in the manner, and accompanied by such plain acts of possession, control and ownership, as a prudent, bona fide purchaser would do, in the exercise of his rights over the property, so that all persons might have notice that he owned and had possession of
We are of opinion that these instructions are correct,
The case of Stevens v. Irwin, 15 Cal. 507, illustrates this point. The court say: “The word ‘actual’ was designed to exclude the idea of a mere formal change of
In Godchaux v. Mulford, 26 Cal. 325, it is said that: “A hired clerk or salesman is no more in the possession of the goods of his employer than a hired laborer is in the possession of the farm on which he is employed to work. The employment of the vendor in a subordinate capacity is colorable only, and not conclusive upon the question as to whether there has been an immediate delivery and an actual change of the possession. 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 that 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 judgment is affirmed.