106 N.W. 41 | N.D. | 1905
This action is brought h> recover judgment for money paid under protest by the plaintiff to' the defendant, for taxes alleged to have been unlawfully assessed against it by the defendant in the year 1897. During that year taxes were assessed upon 35,000 bushels of wheat as owned by the plaintiff and stored in its elevator at Page, in said county. The plaintiff refused to pay said taxes. Thereupon the county regularly proceeded to dis-train its property in said county, and advertised the same for sale for said taxes, and it was offered for sale to pay said taxes. Plaintiff thereupon, and before the actual sale of said property, paid said taxes under protest. Plaintiff alleges in its complaint that it was not the owner of any of the wheat so assessed to it on April 1, 1897, and further alleges that the said wheat was owned by the Barnum Grain Company at that time. The sole issue raised
Under these facts it remains to be determined whether the sale was a completed one when made or became such before April 1, 1897. The parties do not disagree upon the principles of law applicable to the facts. These are elementary, and relate solely to the principles applicable to the delivery of personal property and change of title under sales. The decisive point for determination is: Who owned the wheat in question on April 1, 1897, It is claimed that there was a delivery of the wheat when the sale was made, and that the sale thereby became consummated. That the wheat was delivered is claimed by virtue of the fact, asserted to be true, that the warehouse receipts was delivered before April 1st. There is no evidence of this fact. The court found that it was delivered between March 18th and July 1st; and that is as definite a finding as can be made under the evidence. Conceding, but without deciding, that the delivery of the warehouse receipt would be a delivery of the wheat in- this case, because of its bulky ■character and large number of bushels making immediate and actual delivery impossible, still no delivery is shown, as the evidence fails to show the fact of the delivery of the warehouse receipt before April 1st. The mere issuing of the warehouse receipt without delivery will not constitute a completed sale, nor would that fact be sufficient to make the sale within the requirements of the statute of frauds. The entries in the journal or warehouse receipt book are not sufficient as a memorandum. These entries do not state the terms of the sale substantially. This is necessary in a memorandum. Tiedeman on Sales, section 76; Mechem on Sales, sections 425, 433. In fact, they do not show a sale at all, nor can a sale be proved thereby or therefrom without the aid
It is claimed that the title may pass before delivery in certain cases, and we do not dispute the proposition. But the facts must show that such was the intention of the parties.. That is the test as to whether the title has passed or not. In this case there is nothing to show that the parties intended that title should pass before deliveiy of the wheat and payment of the price. There was nothing said nor done when the sale w-as made showing that title was intended to pass immediately, nor that delivery was then to be made. If anything is shown in regard to delivery, it is that delivery was to be made later. The plaintiff’s secretary testifies that plaintiff sold all this wheat to said Barnum Grain Company “to be delivered between April 1st and July 1st at 73cts., delivered at Duluth.” This negatives the idea of a present delivery at the time of sale. Summing up the evidence of the sale, it appears to be 'beyond dispute that it does not show a delivery of the warehouse receipts to the purchaser before April 1st. It is also' beyond dispute that there was nothing said or done when the sale was agreed on to show that an immediate delivery was then and. there to be -made, nor was anything said that title should then and there pass to the buyer, although 'delivery was to be made later. Nor was payment or part payment made before April 1st; nor was there any act done, or word' said, showing that there was a delivery by symbol. The necessary conclusion from a careful consideration of all the evidence is that the transaction consisted solely of the
It is contended that it is immaterial whether there was a memorandum of the agreement or not, -inasmuch as the parties had the right to waive the provisions -of the statute of frauds and make a valid and completed sale, regardless of the statute. That the right to claim the benefit of the statute is a personal privilege and may be waived seems to be generally held, although w-e need not pass on that question now. If we were to hold that the evidence- shows that the parties intended an immediate change of title without actual delivery of possession, the point would be applicable. However, we hold that the evidence fails to show delivery or the passing of the legal title. Hence the ownership was in the plaintiff on April 1st, and the property was subject to assessment as the plaintiff’s property on that day. We have considered the evidence solely to ascertain therefrom’ whether it shows a -completed s-ale between the parties or not. We conclude that the evidence fails- to show that the -parties intended an immediate change -of title or an immediate delivery. The plaintiff co-uld not hav-e recovered for the price of the wheat if an- action therefor had been brought against the Barnum Grain Company on or before April 1, 1897. This is a -satisfactory test as to whether the t-it-le had passed. Inasmuch as the -contract involved the sale of personal property valued at more than $50, an oral contract would not be valid, unless in writing or accompanied by a memorandum subscribed by the vendor in the -case, or there was a delivery -or part delivery, or payment or part payment, under section 39-58, Revised Codes. Before delivery is sufficient to do away with the requirement that the contract shall -be in writing or -evidenced by a memorandum, both parties must be -parties to the delivery. That
Plaintiff’s contention that it became a bailee of the wheat after the contract was entered into is also untenable. It is true that such an arrangement might legally have 'been- entered into, but such a contract or bailment will not be presumed. The question is, not what the parties might legally have done, but what contract did they then enter into, and what was- done thereunder. It is immaterial that there may have been a delivery of all this wheat to the Barnum Grain Company later. How much of the wheat was delivered to it under this contract we have not determined, as the crucial question to be determined is: Which party owned the wheat on April 1st ? On that question, the answer must be against the claims of the plaintiff. The most that the evidence ■shows is that there was an agreement for a sale to be consummated later. Before it was consummated the right to assess the property in Cass county arose, and it was there taxed.
Judgment affirmed.