77 P. 722 | Idaho | 1904
This action was commenced in the probate court of Lemhi county by the plaintiff against the defendant as the sheriff of said county, in claim and delivery, alleging that the sheriff wrongfully levied upon and took possession of one certain cream separator, the property of plaintiff; that before the commencement of this action he demanded pos-ísession of said property which was refused by defendant; that :the property is worth the sum of $125, and that he has been -damaged by its wrongful detention in the sum of $50. Defendant denies the ownership or possession of said property of -plaintiff at any time; denies that the property was worth at •fhe time defendant took possession thereof any sum greater than $75, or that plaintiff was damaged in the sum of $50, or any other sum, for the possession of said property by defendant. Further answering defendant alleges that in December, 1902, one Haman commenced an action in the probate court :against one Frank Boche to recover the sum of $64.17 for •goods, chattels etc., sold by Haman to Boche, and on the sixteenth day of December, 1902, a summons was issued and served upon said Boche by defendant sheriff; also a copy of complaint. That on the eleventh day of December a trial of said cause was had in said court and judgment rendered in favor of plaintiff for the sum of $63.37 and costs. On the 13th of December, 1902, execution was issued by virtue of said judgment com
Appellant insists that there was no change in the possession of the property in controversy such as the law contemplates, .or any change whatever. The undisputed facts as disclosed by the evidence are that plaintiff was working for Frank Roche on what was known as the McDonald ranch, about two and one-half miles from Salmon City. In his settlement with Roche he accepted a note for $90, and thereafter, on December 1st,, he surrendered the $90 note and took the cream separator in-payment thereof, agreeing to pay a note due “on the company”' of $34 — evidently meaning a note to the company. And he-says at that time he got a bill of sale of the machine which was; in evidence, to wit: ■
“Salmon, Idaho, Dec. 1, 1902.
“I have this first day of December, 1902, sold to William Rapple, subject to last note due of $33.33 to the De Laval Separator, payable at Langsdorf & Company Bank, Salmon, on December 20, for ninety dollars ($90) due him for labor done ■ this summer on the McDonald ranch.
(Signed) “FRANK ROCHE.”
Our attention is called to section 3021, Revised Statutes. It says: “Every transfer of personal property other than a thing in action, and every lien thereon, other than a mortgage, when allowed by law, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompamed by an immediate delivery and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against' those who
We do not think the facts in this case applicable to the one-at bar. In the Harkness case the pretended transfer was made-at McCammon, whilst the goods were at Pocatello, and no pretense of a delivery until the next day. When the pretended transfer was made the next day there was no appreciable change in any of the merchandise, the clerical force, the control or management of the business, or anything that would or could give the least intimation that there had been a change in the ownership of the business.
Hallett v. Parrish 5 Idaho, 496, 51 Pac. 109, cited by appellant, involved the attempted or pretended sale of wheat in Nez Perce county. Mr. Justice Huston writes this opinion also' and states the facts as follows: “On the third day of September,. 1895, plaintiffs being partners under the firm name of Hallett. & Morrison, purchased of one C. J. Landon, seven thousand bushels of O. K. No. 1 marketable wheat, to be delivered at top* of tramway on or before sixty days; loss or damage by fire to be carried by the party of the first part. This sale was evidenced by an instrument in writing signed by C. J. Landon, attested with his seal, witnessed by Fred W. Hallett, one of the-plaintiffs, and acknowledged before him as notary. On the-twenty-third day of September, 1895, the defendant, as constable, levied an execution (issued by justice of the peace of said county upon a judgment against C. J. Landon) upon and seized eight hundred sacks of wheat upon the premises and in. the possession of said C. J. Landon.”
After this statement of facts the court, in summing up its conclusions, say: “There was no delivery nor any attempt of delivery at that time nor for quite a period thereafter. . . . _ The evidence showing conclusively that there had been no deliv
The undisputed facts in the case at bar do not bring it within the rule laid down in Hallett v. Parrish. It cannot be said there was no attempt at change in possession of the property in controversy in the face of the positive declaration of the plaintiff that he immediately took possession, and so remained in possession of the property until it was taken from him by the sheriff by virtue of the execution.
Counsel for appellant call our special attention to Bassinger v. Spangler, 9 Colo. 175, 10 Pac. 810, a Colorado case. The writer of this opinion, Mr. Chief Justice Beck, collected and discussed the decisions of a number of states containing statutes similar to our section 3021, and says: “The argument that a. reasonable interpretation must be placed upon the statute, and that impossibilities should not be required, is recognized by us as sound. At the same time a purchaser cannot be permitted, in any case, to fold his arms after making his purchase, take no steps to complete the sale, and have his case excepted from the rule by reason of his good faith, and the inconvenience attending a substantial compliance with the statute. It is true, as suggested by counsel for the plaintiff in error, that the statute does not require impossibilities. A purchaser of two thousand sacks of grain cannot reasonably remove them all immediately. The purchaser of a kiln of hot brick cannot remove the brick while hot. But other acts can be substituted which will apprise the community of the change of ownership and satisfy the demands of the law.” The writer cites Lay v. Neville, 25 Cal. 545, and quotes this language: “The acts that will constitute a delivery will vary with the different classes of cases, and will depend very much upon the character and quantity of the property sold, as well as the circumstances of each particular case.” This seems to us to be the correct rule and is founded in equity and reason. It was followed in a recent case in this court — Simons v. Daly, 9 Idaho, 87, 72 Pac. 507. Mr. Justice Ailshie, speaking for the comet, said: “While the evidence as to
A trial by jury having been expressly waived by both parties in open court, the case was tried by the court, which court found that the delivery and possession was sufficient to entitle the plaintiff to recover, and we do not think his findings and judgment based upon the evidence should be disturbed.
The judgment of the lower court is affirmed. Costs are awarded to respondent.