| Me. | Jul 1, 1885
The trustee writ against James Mayvillo, and Eliphalet Morse, trustee, in favor of the plaintiff, was dated Nov. 6, 1852, and put into the hands of the defendant for service, with written instructions, which were dated Nov. 8, 1852. The property directed to be attached was not taken by the defendant, and the service was made upon the trustee after he had given a negotiable note for a prior indebtedness to the principal defendant, and after the defendant in this action had seen him, at the house, where the principal and trustee were.
The defendant denied‘his liability for omitting to attach the hay, on the ground, that it had before been legally transferred to one Colburn, under a sale; and the defence for not making earlier service on the trustee was, that although he might have seen the trustee, he was ignorant that he was the person named as the trustee in the writ; and he made service upon him, the moment he had the necessary information.
The case comes before the Court, on exceptions to the
The. requisites of a sale, made by a debtor, which would be valid as against his creditors, as stated in the instructions to the jury, were full, and are not the subject of any complaint. Certain specific instructions requested and omitted, are all predicated upon the assumed ground, that the evidence was insufficient to procure a sale as against the plaintiff, and that instruction to this effect should have been given, as a rule of law.
It is true, when the whole testimony, if believed, would not, in law, establish the fact in controversy, the Judge might be required to express the legal effect of the testimony as matter of law. But when the evidence has a tendency to establish the controverted fact, though it may not be strong in its support, and the Judge may well apprehend, that the jury will find it insufficient for the purpose for which it was introduced, the Court has not therefore the right to weigh it, and determine its insufficiency as matter of law. On the other hand, if the evidence upon the most favorable construction for the party offering it, does not tend to show the truth of the proposition stated, it furnishes nothing for the consideration of the jury, and the Judge has the same power to say to the jury, that it fails in the object sought, that he has to exclude it for irrelevancy.
In order to perfect a sale as against creditors of the vendor, a contract must be completed between the parties to it, and possession taken by the vendee, or he must be in a situation to take possession of the articles, by the consent of the vendor. 2 Stark. Ev. 638.
By the testimony of Colburn, he bought a barn of hay of Mayville, the plaintiff’s debtor, on Oct. 23, 1852, in township No. 8, range 4, and was to give therefor ten dollars a ton; and on Oct. 26, as he thought, concluded the trade, at that price; the parties to the contract then agreed up»n some person to measure the hay; that Colburn examined the hay,
The parties to the sale seemed to have supposed, that the sale was not completed, at the time of their first negotiation, on Oct. 23; and that something else was necessary to make it legally perfect. It may have been, that this attempt to make the sale was at a different place from that where the hay was, but when the transaction of Oct. 26, took place, the purchaser examined the hay, and consequently was so situated, that he could take possession at that time. Whether the owner gave consent, that the hay should go into the possession of the vendee or not, there is no direct evidence. He had the right to retain it for his security, but this right he could waive. Neither does it appear, whether the consideration was paid before, at the time, or after, the hay was taken from the barn by Colburn. But the hay having been purchased, to be used on the township where it grew, and being afterwards so used, and no payment having been made till Dec. 15th, and no objection to removal before the consideration was paid, being shown, the question of a perfect sale, or otherwise, was for the consideration of the jury. The exact amount of the hay being undetermined, was not inconsistent with the completeness of the sale, if it was perfected in every other respect, and so intended by the parties. But it was incumbent on the defendant, who affirmed the sale, to satisfy the jury, that it was designed to be an absolute transfer, and all that remained to be done, was for the purpose of ascertaining the amount to be paid as the consideration. Riddle v. Varnum, 20 Pick. 280; Hawes & al. v. Watson &. al. 2 Barn. & Cress. 540.
Whether the evidence was so defective and' uncertain in its character, touching the sale of the hay, that it failed to establish the legal transfer, was exclusively for the jury to decide. They may have erred in their verdict upon this branch of the case, but the Court cannot substitute its own
The motion to set aside the verdict as being against the evidence of the case, in exonerating the defendant from liability for not making an earlier service on the trustee, must be overruled. It does not appear, that he had personal knowledge of Morse. When he went to the house it was dark, and if he had ever seen Morse, there were not the means of recognizing him, which would have existed under other circumstances. It does not appear that he was informed that’Morse was at the house where he stopped; and his directions were, “ to trustee Mr. Morse, the man for whom Mayville worked last winter.” These directions imply the necessity of some inquiry, which it does not appear, he had opportunity of making, before Mayville, suspecting the object of his journey, went directly to Morse and obtained his negotiable promissory note. The verdict of the jury, cannot for this-cause be impeached.
Exceptions and motion overruled.