| Wis. | Apr 6, 1886
The rules of law which govern this case are elementary, and the case calls for but little discussion. If a sale of the wheat by Wesley O. Sharp to the plaintiff was consummated at Baldwin, at the time they met there and negotiated on the subject, so that the title to the wheat, as between them, passed to the plaintiff, and if such sale was not void for any reason as against the creditors of Wesley, the wheat, when seized, was the property of the plaintiff, and the defendant acquired no right thereto by seizing it under the attachment as the property of Wesley. The cir•cuit judge in his charge to the jury put the case on this basis by submitting to them the questions of fact: (1) Was the sale consummated at Baldwin? And, if so, (2) was. it an honest bona fide sale? The jury resolved both questions in the affirmative by finding for the plaintiff. The instructions upon the subjects included in the above questions. are quite full, and we think state the law correctly. H the transactions at Baldwin occurred as testified to by all who-, were their present, there can be no reasonable doubt that
It was argued by counsel for defendant that the sale being by parol, and not accompanied by an immediate actual delivery of the property, the surrender of the note of the vendor was not such a part payment as will take the sale out of the statute of frauds and render it valid. The authorities cited to that proposition do not sustain it. They only hold that an agreement to surrender a claim or give a credit, in payment or part payment for the thing purchased, is not sufficient. The surrender must actually be made or the credit given. The purchaser must, at the time of the purchase, part with something of value. In this case the plaintiff did part with something of value in part payment for the wheat, to wit, the note he held against Wesley. Such note was effectually canceled by the delivery thereof to the maker pursuant to the parol contract.
On the question of the lona fieles of the sale, the jury were instructed, substantially, that if it was not followed by an immediate delivery, and an actual and continued change of possession of the wheat, the sale was presumptively fraudulent and void as against the creditors of Wesley. This is the rule of the statute. R. S. sec. 2310. They were also instructed that if there was a "bona fide surrender of the key of the granary by Wesley to the plaintiff, that was a delivery of the wheat, and removed from the sale the presumption of fraud, thus casting upon the defendant the burden of proving fraud, if he relies upon its existence as a defense. Only the substance of the charge as we understand it, not the language of the judge, is here given. We see no error in these instructions. The symbolical delivery
"We think the application of the above rules of evidence to this case is not affected by the fact that the formal levy of the attachment was made intermediate the sale of the wheat at Baldwin and such actual delivery thereof to the plaintiff a few hours later. The delivery was made before the defendant actually took possession of the property, and the property was taken by him from the possession of the plaintiff.
Several instructions were proposed on behalf of the defendant, and refused. One of these related to the validity of the levy upon the wheat in the first instance. The charge throughout goes upon the hypothesis that such levy was valid and effectual as against the attachment debtor, and that, unless plaintiff could establish a paramount title to the wheat accruing before the levy, the defendant was lawfully entitled to hold it under his writ. Hence the" instruction was immaterial. It is enough to say of the remaining proposed instructions that all of them which are material and contain correct legal propositions were sufficiently given in the general charge.
We are unable to find in the record any error which will justify a reversal of the judgment.
By the Court.— Judgment affirmed.