91 N.W. 39 | N.D. | 1903
This action was brought to recover the possession of a stallion, which stallion, at the commencement of the action, was in the defendant’s possession. The sheriff, under claim and delivery proceedings, took possession of the stallion, and delivered him to the plaintiff, and plaintiff was, at the trial, in possession of the animal. The complaint alleges title in the plaintiff, and plaintiff bases his alleged right of possession upon title and ownership of the stallion. Defendant answered the complaint, denying the plaintiff’s ownership, and alleging that one Thomas Creath, at the commencement of the action, was the owner of the stallion. Defendant’s answer further states, in substance, that the defendant, before the commencement of this action, had taken possession of the stallion while the stallion was in the possession or under the control of said Thomas Creath; that such possession was taken by defendant as a constable of said county, “under a writ of attachment issued out of the court of John S. Tufford, one of the justices of the peace of said county; and that the defendant was one of the constables of said county, and was at the commencement of this action holding said stallion as the constable to whom the said writ of attachment was directed.” Upon these issues the case was tried to a jury, and, after plaintiff had submitted his testimony, and rested his case, counsel in behalf of the defendant moved for a directed verdict, which motion was granted. Upon this feature of the case the record is as follows: “The defendant moves the court to direct the jury to find a verdict for the defendant for the reason that the plaintiff has failed to make a prima facie case for the ownership of the stallion, Prince Wilkes, for which this action is brought, it appearing that said Exhibit A is a contract of conditional sale, and the same not having been filed as required by section 4732 of the Revised Codes of North Dakota. The motion is granted by the court, to which action of ■ the court the plaintiff duly excepts. The court: The motion of the defendant is granted, and the foreman of this jury is directed to sign the verdict presented by the defendant’s counsel. To which ruling and direction of the court the plaintiff by his counsel excepts. Thereupon the jury, under the direction of the court as aforesaid, found the following verdict: We, the jury, find for the defendant. We find that the defendant was and is the owner of the horse, and entitled to the immediate possession thereof; and that the value of his inter'est in said horse is three hundred dollars.’ To which verdict of the jury and the entry thereof by the court the plaintiff duly excepts.” Pursuant to said verdict and an order directing the entry of judgment, the following judgment was entered in the district court: “Wherefore * * * it is ordered and adjudged that the defendant have and recover" of and from said
The only evidence offered at the trial was introduced by the plaintiff, and, except the testimony of the sheriff upon features of the case not now material, the evidence consisted of the oral testimony of the plaintiff and a certain written agreement signed by plaintiff and Thomas Creath, which is dated June 22, 1900. Plaintiff testified, in substance, that on or about the date of the written agreement he delivered the possession of the stallion to said Creath; that plaintiff next saw the stallion on July 4, 1900, when he was in Creath’s possession, and that plaintiff did not see him again until the 2d day of January, 1901. The animal was seized and turned over to plaintiff about January 17, 1901. The testimony tends to show that Creath had abandoned the horse and left the country some time prior to the commencement of the action. The written agreement in evidence is too long to quote at length, but its terms are to this effect: Plaintiff agreed conditionally “to well and truly sell” the stallion to Creath for the price of $600, but such sale was “not to be made” until the conditions named- in the writing were fully and completely performed. It was stipulated that immediate possession was to be given Creath, and the animal was turned over to Creath accordingly, but the writing expressly stated that Creath should acquire “no right, intefest, lien, or claim to said stallion, except naked possession,” until he had fulfilled the agreement according to its terms and stipulations. The writing stipulated that the contract should be fully completed on October x, 1901; also that on default of any of the covenants of the agreement the plaintiff or his agents “may at any time, at his or their option, declare this contract at an end,” and retake possession of the said stallion, and “put an end to this contract in all things, retaining to the party of the first part [plaintiff] any and all payments, benefits, and profits which the party of the second part may make or render to the party of the first part hereunder, collateral to one certain note even date herewith.” The writing in general terms required Creath to provide the necessary food for the stallion, to carefully keep and groom and in all respects care for the animal in a proper manner. Also required Creath to keep and stand the stallion for breeding purposes,- and to take and turn over to plaintiff all the liens and proceeds derived from breeding the animal to mares, and that such proceeds should be credited on the contract. At the time the stallion was turned over to Creath the plaintiff received from Creath one horse of the agreed value of $100 and two promissory notes, each for the face
The only other testimony or fact in the record which is relied upon as a justification of the order is to be found in the language of the motion for a directed verdict, which has. been set out at length, and it is to the effect that the agreement in writing, which is ■ — -and, we think, correctly — described in the language of the motion as a “contract of conditional sale,” had not been filed as required by section 4732 of the Revised Codes. It is apparant that the order directing the verdict was based upon the omission to file the contract, and in making the order it must have been assumed by the trial court that the plaintiff’s failure to file the contract, as against the defendant, operated to vest the title of the stallion in Thomas Creath, and to justify the defendant’s seizure under the attachment. But the mere failure to file the contract did not alter its provisions, nor impair any of its obligations. As between plaintiff and Thomas Creath, the title of the horse was vested in the plaintiff until the conditions of the contract were performed, and any omission to file the instrument could not, as between plaintiff and Creath, operate to transfer the title to the latter. It appearing, therefore, from the ■evidence, that the plaintiff was, and at all times in question had been,
Our conclusion is that the judgent appealed from is erroneous, and the same will therefore be reversed.