Turnbow v. Beckstead

71 P. 1062 | Utah | 1903

HART, District Judge

(after stating the facts). — The principal question involved in this appeal is whether these agreements are contracts of sale passing to Jones title to the sheep, or whether they are mere leases. As was said 1 by this court in the similar case of Woodward v. Edmunds, 20 Utah 118, 125, 126, 57 Pac. 848: “There are no words of sale in the instrument, no language whatever showing a transfer of title, or a provision to pay for the prop^ erty. Nor does the language employed indicate that it was the intenton of the parties that the transaction should be a sale of the property.” Both parties hereto rely upon the rule that, “where there is ambiguity in a contract, a practical construction given it by the parties before the controversy arose should be adopted by the court,’’and each insists that his position is strengthened by the evidence in' the light of this rule. In this connection there is the testimony of Jones: “I didn’t claim to be the owner. I never paid anything for them, only just as dividends on them.” Also the testimony of Jones and Ar-> thur Bennion that the increase belonged to Jones. But all such testimony is largely in the nature of conclusions. There is some testimony that plaintiff’s assignors consented to Jones branding the sheep with his own brand, although the finding of the court is to the contrary. At least Bennion knew that his sheep had been so marked; but it appears he was a minor at that time.

Considerable expert testimony was taken as to the meaning of the expression in such a contract, “keep the old stock good.” Heber Bennion, an expert called for the plaintiff, testified that he understood by this phrase that the number was to be kept good out of the increase of -the old sheep, and this was considered a partial guaranty of the quality of the animals because a product of the old sheep; but that, if the increase were not enough to make up for a loss of the old sheep-, that sheep from some other source as near the same quality as possible should make up the number. Other experts testified that the expression “keep the old stock good” means that the same number and quality and ages are to be returned as has been taken out, but not necessarily the same -sheep¡ or their increase. Neither the plaintiff nor his assignors expressly authorized Jones to sell any of the sheep, nor were any of them present when any sheep were sold by Jones, although L. J. Mantle testified that they understood that some of the sheep were being disposed of, but the time he so learned does not appear. It may be a fair inference from all the testimony 2 that under a contract such as this to- “keep- the old stock good” J ones was authorized to do so by disposing of the old' sheep, and letting younger ones take their places; but that Would not authorize him to- sell the entire herd. There can be no question but that the 1,430 sheep- claimed by plaintiff are the original sheep and their increase; mostly the latter. In the Woodward case, supra, this- court said: “The mere facts that the lessee was to pay the rental in wool and a certain portion of increase, and at the expiration of the term to deliver for the original number of sheep a ‘fair cut of the herd or herds,’ are not sufficient under the circumstances to show that the parties intended a sale. . . . But, even if the time and duration of the contract had been such that a natural increase of the flock might have been expected-still the facts are not such as would warrant the court in finding and holding that the transaction was an absolute sale.” In the above-named ease the sheep were all marked with the lessor’s permanent mark, and the contract contained an express provision that no sheep should be disposed of without the consent of the lessor. In view of all of the circumstances of the case at bar, we are not inclined to attach much significance 3 to the fact that Jones’ brand was placed upon the sheep; neither as to the question of intention tu pass title, nor upon the defense of estoppel. The explanation of the circumstances of placing the lessee’s marks on plaintiff’s 450 sheep shows that the parties did not intend thereby to .pass title. The case of Russell v. Harkness, 4 Utah 197, 204, 7 Pac. 865, affirmed, Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51, 30 L. Ed. 285, shows that possession of personal property by one not the owner is by no means conclusive of ownership as against a third party. This court, speaking by Chief Justice Zane, in that case said: “The courts of Illinois and some other States hold that conditional sales of the class involved in this case are invalid as against creditors and purchasers of the conditional vendee. The purpose of the rule is to prevent fraud. The argument against such sales is that possession of personal property is evidence of ownership, and to intrust persons with that evidence with-out the title gives them the means of defrauding and imposing upon others. This argument may also be made against loans, bailments, and leases of personal property. But it has been uniformly held that the purchaser of the borrower, the bailee, or lessee takes subject to the rights oí the vendor or the 4 bailor or the lessor. . . . Every person competent to contract is presumed to know that possession alone is not sufficient «to confer title as against the owner, and, if the purchaser relies upon it without inquiry, he does it at his peril. The law construes contracts according to the intention of the parties, and allows them to contract with whomsoever and upon whatever terms they may desire.”

We do not see that the defendants occupy any better position in this case than Jones himself would. The entire proceeds of the sale of the mortgaged sheep were remitted to the bank, and $1,500 thereof were applied in payment of Jones’ account. If said sheep sold for their market value (and that is a fair presumption), the bank would have gained nothing by refusing to ratify the sale. The bank got the money, and it does not appear that its position was less favorable as to revoking said sale at the time Beckstead, for the bank, took possession of the sheep, and was informed that they were share sheep-, than at any time prior thereto- and after discovery of sale of the mortgaged hex'd. We do not think plaintiff is estopped from making the same claim against defendant that he could make against Jones. While this case differs in -some of its facts from the cases of Woodward v. Ed-munds, supra, Robinson v. Haas, 40 Cal. 475, and Bellows v. Denison, 9 N. H. 293, we are inclined to the view that the principle of those eases is controlling in this.

Appellants contend that plaintiff was not entitled to recover in replevin in any event, for the reason that there 5 were sheep in the herd other than those claimed by the plaintiff. The finding of the court upon this point is: “That the said 1,430 head of sheep were and are all of the herd now held by the said defendant Martin A. Beckstead, except those in said herd claimed by Jared C. Homer, said Homer’s sheep being marked and described as follows, to-wit, all the sheep marked crop off right ear, upper and under bit in the same, and under bit in left ear.” This finding is supported by the testimony of John L. Jones, as follows: “I was at John A. Sharp’s, in this county, when 2,076 head of sheep were turned over to Beckstead. Seventy-six head belonged to Sharp, and about 500 head were marked with Homer’s brand. . . . The sheep that were turned over to Mr. Beckstead, except those that had the Homer brand on them and the Sharp brand, axe the same sheep that were originally leased by Mantle and Bennion and Turnbow, and their increase. There were no other sheep than those original sheep and their increase in that herd, except Homer’s, and 76 head of Sharp’s.” John S. Jones also testified that besides Sharp’s sheep, placed by the witness at 64 or 67, Homer turned into the herd 800, and took out 167 or 197-, and that about 50 died. He said: “There were enough, besides Sharp’s and Homer’s to make up the number of Lewellyn and L. J. Mantle’s, John J. Tumbow’s and Arthur Bennion’s.” If Sharp’s and Homer’s sheep were distinguishable from the other sheep', and besides there were no more than 1,430, we cannot perceive wherein there was any tenancy in common of the 1,430 sheep with other sheep. In all there were 2,076 sheep, from which deduct 1,430, and there are left 646, which would allow 76 for Sharp and only 570 for Horner, while he had -583, if the number withdrawn, by him from the herd was 167.

Complaint is also made of the value placed upon the property in the alternative judgment in case the sheep could not be redelivered. As there is some competent testimony to sustain the finding of the court as to value, this court 6 is not at liberty in a law action, such as this, under the well-established rule in this jurisdiction, to review the weight of the evidence upon this question. Kennedy v. O. S. L. R. R. Co., 18 Utah 325, 54 Pac. 988.

Hpon plaintiff’s supplemental complaint for the recovery of the wool sheared by defendants from the sheep claimed in the original complaint and for the increase from said sheep-, the trial court found the value of such wool to be $815.82, and the value of the lambs $656.35. A deduction was also made defendants from the total judgment of $125.10, costs of shearing and disposing of said wool, and $1,000 for the care of said sheep, with interest thereon from September 21, 1901. We do not feel called upon to- decide the rule of damages or value in a case of this hind, for the reason that it is evident that the judgment given is quite as favorable to defendants as it would be if any legal method of computing value or damages were applied, under the testimony in this case. Interest on the value of the- sheep at eight per cent, from the time of taking to the time of judgment exceeds the net amount allowed for wool and increase.

An order may enter affirming the judgment of the trial court, with costs to plaintiff.

BASKIN, C. J., and BARTOH, J., concur.