236 P. 538 | Idaho | 1925
Sweetland claiming to be the owner, sued to recover the possession of an automobile attached by the sheriff in a suit by the Oakley State Bank against Worthington, later sold by the sheriff to said bank. On the trial before a jury, at the conclusion of defendant's case the *730 court instructed the jury to return a verdict against plaintiff on the ground that at the time of an alleged sale of the car from Worthington to Sweetland there had been no immediate delivery and continued change of possession of the car as prescribed by C. S., sec. 5434. A bill of sale, dated December 7th or 8th, drawn by a third party who did not testify was introduced in evidence.
With regard to the sale Worthington testified:
"I owed Sweetland $300. I had a horse of his and brought it up here in the spring of 1920. I allowed him $200 for the horse. I didn't want the car and he did, so I said to Mr. Sweetland, on the night of the 3d of December, 1920, at Hazelton — "
"So I said, 'Give me $500 more and you can have the car.' He said, 'All right,' and gave me a check for $500. I had the car and wanted to use it until I left Idaho. He said, 'All right.' I stripped a gear and couldn't take the car to him before I left. I went back there again and roads were so bad I couldn't take it down to him. He said, 'Arrange to store it,' and I did, at the garage in Hazelton, at $6.00 a month. He was to call for it."
And later:
"Q. Where did you deliver the automobile in question to L.B. Sweetland?
"A. I met him and showed him the car. When I left Idaho [The evidence shows that Worthington was going and did go to Canada] I left the car in the garage at Hazelton for him to get it.
"Q. . . . . state whether or not you informed or advised the person in charge of such garage at the time the automobile was left there as to the ownership of such car.
"A. . . . . I left it in Hazelton at a garage, and I told the garageman there — Atherton, I think his name was — to hold the car for Sweetland till he called for it.
"Q. . . . . state what information or advice respecting the ownership of the automobile you gave to such garage.
"A. Just to keep the car for Sweetland — that is, at Hazelton." *731
Sweetland testified that on December 7th or 8th, when he and Worthington were alone together, he got into the car and drove it for about one-half mile and that the car was not taken by him to his home because of the bad condition of the roads. The testimony shows that after the claimed sale on December 3d or 4th, or 7th or 8th, Worthington continued to use the car in the same manner as before, that he bought a tire at Burley which was charged to him, and that during the same time his daughter used the car and that he having stripped the gears, new ones were installed in the Hazelton garage, the parts being secured and paid for by Worthington. No taxes were paid on the car and the license was not changed from Worthington to Sweetland. Atherton did not testify and Freeman, the owner of the garage at Hazelton, testified as follows:
"Q. Who brought that car into your garage?
"A. James Worthington.
"Q. To whom did he deliver it?
"A. To myself.
"Q. Did he state anything to you at the time he delivered that car to you?
"A. Why, he said he intended to leave it down here to Jerome on storage through the winter, that he was going to Canada, and he said as it was broke down he just as well leave it there for me to fix up and let it stay there.
"Q. Did James Worthington, at the time he delivered that car to you, or at any other time, make any mention that the plaintiff Sweetland, in this action, was the owner of the car?
"A. No, sir.
"Q. Did he authorize or direct you to turn it over to Mr. Sweetland?
"A. No, sir.
"Q. Did Mr. Sweetland ever tell you that he owned that car?
"A. Yes, sir.
"Q. About when?
"A. I couldn't give you the date on that, but it must have been some time along in June, 1921. *732
"Q. Was it before — or, were you served with the attachment papers in this action?
"A. Yes, sir.
"Q. Was it before or after those papers were served?
"A. Afterwards."
Sweetland did not claim the car till long after the levy, though he explains this by saying he did not know of the suit on account of the sheriff misinforming him as to the case and the attachment pending.
In Trimble v. Hunt,
Petrie v. Wyman,
"The change of possession contemplated in section 7221,supra, and necessary to avoid the presumption of fraud, must generally and ordinarily be open and unequivocal and must have the usual characteristics and indications of ownership. It should be such as to indicate to the world the claims of the new owner. The possession should be continuous, though it need not continue indefinitely; that is, there should not be present an intention to return the property. It must be substantial, and not merely formal. (Petrie v. Wyman,
Beintema v. Van Zante,
In Tennant v. Cline,
In Cronan Automotive Implement Co. v. Sides (Mo.App.),
Wooly v. Crescent Automobile Co.,
Goad v. Wellendorf,
"`The vendee must take actual possession and the possession must be open, notorious, and unequivocal, such as to apprise the community, or those who are accustomed to deal *735
with the party, that the goods have changed hands, and that the title has passed out of the seller into the purchaser.' (Cook v. Mann,
In Cameron v. Calberg, 3 Cal. Unrep. 637, 31 P. 530, the vendee received a bill of sale and went to get the mare, the subject of the sale, out of the pasture of the third party, who not being at home, the mare was not then taken, but the vendee made arrangements to have her removed to another pasture and later did drive her to the other pasture and left her there subject to his order, and the man in charge of the pasture never heard of or recognized the vendor or anyone else in the matter.
In Bunting v. Satz, 3 Cal. Unrep. 193, 22 P. 1132, there was a delivery through the agents of one of the parties to the sale.
In Henderson v. Hart,
In Levy v. Scott,
"The possession must be continuous; not taken to be surrendered back again; not formal but substantial. But it need not necessarily continue indefinitely when it is bona fide and openly done, and is kept for such a length of time as to give general advertisement to the status of the property, and the claim to it by the vendee."
In Gitthrie v. Carney,
"Verbal or written notice of a sale of personal property given to an individual or to any number of individuals unaccompanied by an immediate and actual change in the status of the property is not equivalent to delivery and possession." (Hoffman v. Owens,
In Freedman v. Avery,
In Mead v. Blurton (Mo.App.),
In Bowersox v. Weigle Myers,
"It is indispensable that the vendee assume such control of the property as ought reasonably to indicate a change of ownership. . . . . In the case of property readily susceptible of actual delivery there must be not only a delivery, but a continuing possession in the vendee for such time as would reasonably give notice to all concerned of the change of ownership. . . . . Where the possession is concurrent or the vendor appears to occupy the same relation to the property as he did before, the transfer is void. . . . The possession acquired by plaintiff consisted of the putting of the automobile in his barn by Wolfgang where it remained from the latter part of the afternoon of one day until the morning of the next day when the lease was executed at which time Wolfgang took the car away. The license tag on the car while Wolfgang owned it remained on it. No change of appearance of any kind gave notice that he was no longer the owner. Nothing in the evidence gives any intimation that any other parties interested or the public had any means of knowing that the car was sold; as to them it was a secret transaction. . . . . A temporary and early return of the property into the hands of the vendor leaves it still exposed to the execution of creditors. . . . . A change of possession merely for a single night or day could not have the effect to advise the public of a change of ownership in the property. . . . . It is not apparent from the evidence that the transfer of the property to Bowersox was any more notorious in the morning than it was the night before."
So in the case at bar it does not appear that on the 13th of December, when the car was left at Hazelton by Worthington, that the sale was any more open or notorious than *738 before or that there was any more continued change of possession afterwards as between Worthington and Sweetland, than there was prior to December 3d.
In Ahlstrom v. Tage,
In Rapple v. Hughes,
In Simons v. Daly,
While it is true that a motion for a directed verdict, and the giving of such instruction, has the same effect as a non-suit, admits the truth of plaintiff's evidence and every legitimate inference that can be drawn therefrom, and that a *739
nonsuit should not be given where there is evidence sufficient to support the complaint, or if there is a conflict and evidence, if uncontradicted, on one side or the other would be sufficient to support the verdict (Coulson v. Aberdeen-SpringCanal Co.,
"A directed verdict is proper only when there is no substantial evidence tending to prove, in favor of the party upon whom the burden rests, all the controverted facts necessary to establish his case; but whenever, upon the whole evidence, the court would be compelled to set aside a finding as unsupported by the evidence, it should direct a verdict." (In re Wasson,
"Briefly stated, such direction is not authorized where there is a conflict in the evidence of a substantial kind. A bare conflict, created by what is sometimes termed a 'scintilla' of evidence, is not substantial within the interpretation of the decisions. The rule is precisely the same as that applied where a motion for judgment of nonsuit is under consideration. On such a motion it must appear that the evidence utterly fails as to essentials necessary to be proved before an order granting the same will be allowed to stand." (Kohn v. National FilmCorp. of America,
"It is a settled rule of law regarding trial by jury that in a proper case the court has full power to direct the jury to render a verdict. This power exists in favor of the defendant where there is no substantial evidence tending to prove all the controverted facts necessary to establish the plaintiff's case. It is not necessary that there should be an absence of conflict in the evidence. To deprive the court of the right to exercise this power, if there be a conflict, it must be a substantial one. There are numerous decisions to this effect." (In reSharon's Estate,
Assuming, therefore, that the testimony of Worthington as to the statement made by him at the time he took the car *740
into the garage at Hazelton is true, which must be done when considering a nonsuit, there is no conflict, substantial or otherwise, and the question becomes merely one of the construction to be placed upon, and the conclusion to be drawn from, his statements; in other words, would the jury have been justified in concluding that the car belonged to Worthington and not Sweetland, because Worthington left the car in the garage at Hazelton and said to keep it for Sweetland, and that Sweetland would call for it, and considering all the other evidence most favorable to plaintiff as true Worthington did not state that he told Atherton he had sold the car to Sweetland. He did not state that Sweetland owned the car; he merely told Atherton to keep the car and that he (Sweetland) would get it. There is no conflict as to what Worthington said because Worthington did not say that he told Freeman anything and Atherton did not testify. The burden of proof was upon appellant and this case falls clearly within the statement inYoung v. Washington Water Power Co.,
"The most that can be said for this evidence is that it perhaps creates a suspicion (that the car belonged to Sweetland). . . . but it does not support a reasonable inference. . . . (of such fact)."
The court there concluding that the trial court did not err in granting a nonsuit. (McIntyre v. Northern Pac. Ry. Co.,
Appellant also complains of the action of the court in admitting, over his objection, the testimony of respondent's witness Judd, a stranger to the action, to the effect that Worthington was indebted to him, in the absence of either allegation or proof that appellant ever had knowledge thereof or of such fact. This evidence was admissible. (27 C. J. 806-812.)
Respondents were allowed, over appellant's objection, to show by one Ghrosky that Worthington owed the Oakley State Bank, in the absence of either allegation or proof that appellants had knowledge thereof. This evidence was *741 admissible for two purposes; first, to show that the Oakley State Bank was a creditor (27 C. J. 796), and also, for the same reason, that the evidence of Judd, supra, was admissible.
Appellant urges as error the trial court's refusal of his offer to show arrangements for storage in a garage which was as follows: "It is our purpose to show by this witness [Kelson Newman] that Mr. Sweetland has secured storage capacity in his garage." This offer did not show that the storage was for this particular car or when in December such arrangements were made; the offer, therefore, was not sufficiently explicit, direct or connected with the issues herein to render its rejection reversible error. (38 Cyc. 1322, 1323; Thompson on Trial, sec. 648, p. 625; Pier v. Speer,
The action of the trial court is therefore sustained, and it is so ordered.
Costs to respondents.
Wm. E. Lee, Budge and Taylor, JJ., concur.