72 P. 507 | Idaho | 1903
Plaintiff commenced his action in the lower court against the defendants, charging them with wrongfully and unlawfully taking from the possession of plaintiff, on June 15, 1901, a stock of merchandise, together with store fixtures, of the value of $10,050; and defendants are further charged with the conversion of said property to their own use. Defendants answered, denying that any of said merchandise or fixtures was ever the property of plaintiff, but alleged that the same was, at the time of the seizure thereof by the defendant Daly as sheriff, the property of one Ad. M. Simons. Defendants then plead, in justification of the seizure of the said property by the defendant Daly as sheriff, certain judgments against Ad. M. Simons amounting to something over $5,000, and allege the seizure and sale of said property under and by virtue of executions issued upon said judgments and for the collection thereof. The cause went to trial with a jury, and a verdict was returned in favor of plaintiff, assessing his damages at $7,000, and judgment wa3
Briefly stated, the leading facts in the case are as follows': Gn May 14, 1901, Ad. M. Simons, a brother of plaintiff herein, was, and for a long time prior thereto had been, conducting a cigar and tobacco store at No. 807 Main street in Boise City, under the name of “Ad. M. Simons & Co.” William Simons, the plaintiff, had been working for his brother for some time, and was familiar with all the business and stock on hand. On the date last named, what is claimed by respondent to have been a sale to him of the entire stock and business of “Ad. M. Simons & -Co.” took place. The father of these two brothers held a promissory note against Ad. for $6,000, and, a short time before this sale was made, gave the note to plaintiff as a present. Plaintiff gave his brother Ad. this note in payment for $6,000 for the stock of goods and fixtures, and agreed to pay him the further sum of $3,000 cash on demand in full payment for the property. A bill of sale was duly executed and delivered for all the property in question, and about the twenty-fifth day of May, 1901, the balance of $3,000 was paid. No inventory of the property was taken, but, on the next day after the bill of sale was executed, the keys to the store and all books and accounts were turned over to plaintiff, and the balance of cash on hand at the bank was transferred to him, and he conducted the business thereafter under the name of “Ad. M. Simons Co., Successors.” Ad. left the same day for San Francisco, and was gone two or three weeks. None of the’signs were changed on the store, except that in the store and in front of the office, where a large sign had hung bearing the name, “Ad. M. Simons’ & Co.,” a new .sign was placed, bearing the words, “Ad. M. Simons Co., Successors.” A rubber stamp was procured the day after the sale, bearing the new name adopted, and the stationery was stamped accordingly in red ink, and checks, orders, etc., were signed in the same manner. Plaintiff explains the failure to take an inventory by saying that he was familiar with the entire stock, and .■already knew what his brother had on hand. Edmond Salmon, who had previously been a clerk for Ad. M. Simons, continued
The principal contention made hy the appellants is that the sale claimed to have been made from Ad. M. Simons to William Simons was not “accompanied by an immediate delivery and followed by an actual and continued change o.f possession of the things transferred,’’ as required by section 3081 of the Revised Statutes of 1887, and is “conclusively presumed to be fraudulent, and therefore void against those who are his creditors while he remains in possession.’’ ^While this statute seems to be very plain, and at first thought it might occur to one that no difficulty or uncertainty could arise as to its application, still, when
. Counsel for appellants insist that the case of Harkness v. Smith, 3 Idaho, 221, 28 Pac. 423, is decisive of the question here raised: We cannot agree with this contention. The facts in that case .were very different from the facts under consideration in this matter. There the sale was made at a distance of twenty-five miles from the property. The following day the vendee went to the store, and asked one of the clerks.if he would continue to work -for him (the vendee) at the same price he had worked for Gallager, the vendor. All the clerks were retained, two of them being the son and daughter of the vendor. Gallager continued to run the business as before, buying and selling, without. any change of signs or anything to indicate that a sale had been made. Harkness, the purchaser, seems never to have been about the store except this one time. The facts in that ease were all in favor of the sheriff, .who was appellant.
• Appellants complain of the rulings of the court in admitting certain evidence and excluding other testimony offered. The exhibits-referred to in the transcript have not been furnished this' court, and we have not examined them, but, so far as we have -been .able to gather their character and import from the record, .we see no error in the rulings made by the trial court. ..
Judgment and order affirmed, with costs to respondent.