17 Nev. 209 | Nev. | 1882
By the Court,
’ This is a contest between the creditors of Ratto, Nicolo & Co. for a quantity of charcoal.
The plaintiffs claim ownership under a bill of sale executed November 3, 1879.
The defendant justified his taking under a writ of attachment against the debtors as their property, or subject as theirs to the writ on the first day of December, 1879.
Plaintiffs recovered judgment; a new trial was granted, and from this order plaintiffs have appealed.
In the determination of appeal each point relied upon by respondent, upon his motion for new trial, must be considered. If any one of them is good, the order of the district court should be affirmed; if, on the contrary, the record does not
The assignment of errors will be considered seriatim:
First — It is claimed that the evidence is insufficient to justify the verdict, because such a change of possession did not accompany the sale of the property as is contemplated by the statute of frauds.
The facts are as follows: The firm of Tiatto, Nicolo & Co. were in failing circumstances. They were indebted to the plaintiffs in a considerable sum of money, and in settlement of the account transferred to them twelve thousand bushels of charcoal, the property in controversy.
At the time of the execution of the bill of sale the charcoal was in the pits in which it had been burned upon the land of the vendors. No attempt was made to remove it. ' A few days after the sale, and about twenty-five days prior to the time when the attachment was laid, plaintiffs sent a person to the coal pits and caused them to be severally marked with their name. This person remained in charge of the property for about a fortnight, when he left, and another, who lived upon an.adjoining ranch, was requested to look after it. This latter person made occasional visits each day to the coal pits. Nothing further was done by the plaintiffs down to the time of the levy by the defendant. '
In sales of personal property the statute requires that -it must be taken into the actual possession of the vendee in order to be operative against the creditors of the vendor. (1 Comp. L. 29J2.) This requirement of the statute is based upon the principle that permitting the former owner to remain in the apparent ownership of the property may be the means of giving him a false credit. There is no difficulty.in the application of the statute to sales of personal property capable of actual delivery, as, for instance, in the case of the sale of a few bushels of charcoal, but the application of the statute to sales of cumbrous property, such as twelve thousand bushels of charcoal, has been fruitful of litigation. What will amount to a change of possession sufficient to satisfy the requirements of the statute in one case, will fall short of its demands in another. Each case must .be decided with the relation to the character and situation of the property at the time of the sale.
A review of a few of the decided cases, in which the nature and bulle of the property precluded an actual delivery, will show the change of possession which courts have held to be sufficient.
In Cartwright v. Phœnix, 7 Cal. 281, the plaintiff purchased a quantity of flour standing in a separate pile in a warehouse. The vendor, pointing to the pile, said to the agent of the plaintiff, " There is the flour.” The agent placed the number “ 800 ” — the estimated number of sacks — on one of them. The flour remained in this condition until attached.
The court declared that all was done which, under the circumstances, was necessary to pass the property. "It was not necessary for the vendee to remove the property from the house where it was at the time of the purchase to bring himself within the statute. ”
The same construction was given to the statute in the case of Chaffin v. Doub, 14 Cal. 384. In that case the debtor, to secure debts due for mowing, etc., mortgaged certain hay lying in swaths, cocks and windrows in the fields in which it
In Pennsylvania it was held that a large quantity of lumber left in the saw mill yard in which it was purchased, but conspicuously marked with the name of the purchaser, who was prevented by the condition of the roads from removing it without incurring unusual and unreasonable expense, was not subject to levy for the debt of the vendor. (Haynes v. Hunsicker, 26 Pa. St. 58.) In Chase v. Ralston, 30 Pa. St. 539, the property was of the same nature, the delivery made in the same manner, and the decision to the same effect.
In the case of the sale of the furniture of a large hotel, where the furniture could not be removed without great deterioration and expense, and was mainly valuable for the purposes of a hotel and at the place where it was situated, it was held sufficient for the vendee to assume the direction and control of the property in an open and notorious manner. (McKibbin v. Martin, 64 Pa. St. 352.)
In Allen v. Smith, 10 Mass. 308, it was held that a creditor taking a large number of bricks for his debt, and placing an agent in charge of them, was a sufficient change of possession, notwithstanding the property remained in the kiln and brickyard of the debtor. “This yard,” said the court, “is not
More was done by way of investiture in this case than in the cases of Cartwright v. Phœnix, Haynes v. Hunsicker, or Chase v. Ralston. The facts closely resemble those in Allen v. Smith. In that case, as in this, the property remained upon the premises of the debtor, and in each case the person in charge for the purchaser was absent at the time of the levy.
The creditors of the vendors could not have been misled by the failure of the plaintiffs to remove the charcoal before selling it, and it was not necessary to subject them to that expense.
One of the conditions of the sale by Ratto, Nicolo & Co. to the plaintiffs was that the vendors were to sack and load the charcoal upon wagons. Presumably this embraced the obligation of drawing the coal out of the pits. They did so draw it. But this act showed no possession in the vendors as against plaintiffs, in face of the notices posted upon the pits and the presence of the persons sent there by them.
Third — During the trial the court excluded proof that subsequently to the ■ levying of the attachment, and while the sheriff was holding the property under the writ, the defendants in attachment, Ratto, Nicolo & Co., sold it to P. H. Hansen, to whom it was delivered, before-demand. The district court being of opinion that its ruling upon this point might have been erroneous, granted defendants’ motion for a new trial. We see no reason why this testimony should have been admitted. The justification of the defendants’ levy is based upon the ground that the property was subject to attachment as that of Ratto, Nicolo & Co. If it was theirs the defendant was justified, and a bill of sale executed subsequently by the debtors could not strengthen defendants’ position as against the plaintiffs.
If, however, the plaintiffs were the owners of the property the defense failed, and it could not have been aided by any attempted transfer by those who were not the owners. The *'case turned-upon ■ the question of- the liability of the property to attachment, and it was immaterial, under the circumstances, whether the transfer was made by the debtors to Mr. Hansen.
Fourth — The court refused to give the following instruction: “You are instructed that the mere placing of tickets or notices, such as have been proven in this case, upon coalpits, is not sufficient evidence to make a valid possession in the plaintiffs as against defendants in this case, and if you find that said notices were the only evidence of a change of possession of the coal, you must find a verdict for defendant.”
The evidence was uncontradicted that notices were posted at the coal pits and men placed in charge of them, as herein-before stated.
The instruction assumes' the fact of the posting of the notices, but is silent as to the charge taken by the men. In this it is misleading.
It is said that the instruction should have been allowed because the fact that the notices were posted was uncontradicted. In Gaudette v. Travis, 11 Nev. 149, this court refused to reverse a case in which the lower court had, in its instructions, assumed as a fact a matter upon which the evidence was uncontradicted. The opinion was based upon the ground that the ruling, although erroneous, could not have been prejudicial, and that if the fact assumed had been submitted to the jury on a special issue, and they had found otherwise, no court would have hesitated to set aside the verdict.
It • is well settled that a judgment should not be reversed because of the allowance of an incorrect instruction, when it is clear that the error could not have injured the complaining-party, and the verdict is undoubtedly right. But that principle is inapplicable to a case like this one, in which the court refused to give an erroneous instruction.
This completes the exceptions relied upon in the motion for new trial. None of them being well founded, the order granting a new trial should be reversed, and it is-so ordered-