Tuttle v. Cone

108 Iowa 468 | Iowa | 1899

Groar, J.

1 — I. Appellants’ first contention is that the court erred in admitting the evidence of several witnesses as to the value of the bicycles; the claim being that said witnesses were not shown to be competent to testify to their value, because not familiar with the value of bicycles in general, nor of that particular make. We have examined each of these complaints, and find that what is urged goes rather to the' weight to be given to the testimony of the witnesses than to their competency. We think the showing as to their competency was sufficient to allow their evidence to be taken.

Appellants complain that they were not permitted to ask a witness, on cross-examination, as to the value of the wheels, based upon the fact of their number; that they were in the original frames, in a vacant storeroom in Cedar Napids, for four or five days. The witness was fully cross-examined as to their value, and we do not see that these facts so materially entered into the question of value as that the ruling was prejudicial.

2 Appellants complain that they were not permitted to show by the witness Swab that plaintiff said to him, along in the latter part of April or the first of May, that he was going to sell the wheels in Cedar Nap-ids for his brother. Plaintiff’s claim of ownership rests upon a bill of sale from Shelly Tuttle, dated and acknowledged May 2, 1896, in California, and a statement such as that sought to be proven, made prior to tbe time be acquired, bis title, would not tend to defeat that title.

3 It is also complained that the court excluded certain letters from Swab to Shelly Tuttle offering to buy the wheels, which were handed to the plaintiff, to be transmitted, April 29, 1896. This proposition was between parties strangers to this transaction, and it does not follow that because thereof the plaintiff may not have acquired a valid title under the bill of sale.

4 II. Appellants ask an instruction to the effect that the jury was not called upon to determine whether the defendant in the attachment suit was indebted to the plaintiff therein, nor whether said attachment would be sustained, and that there were but two issues in this ease, namely, whether plaintiff was the owner of the bicycles at the time they were taken on the attachment, and their fair market value at that time. As to the issues involved, the court so instructed; as to the other part of the instruction asked, it was clearly erroneous. In Day v. Kendall, 60 Iowa, 414, a case similar to this the court said: “The evidence, we think, shows a sale and delivery by Kendall to Garrett. Whether the sale was fraudr ulent or not, we do not determine. If it should be conceded that it was, it was sufficient to pass the title, as between the parties to it, and it was also sufficient, as against the plaintiffs, unless they were creditors of the vendor. To enable them to seize and hold the property under their attachments, after it had been actually sold and delivered to Garrett, it was incumbent upon them to aver and prove that they were creditors of the vendor. This they failed to do. We think that the court erred in rendering judgment in their favor, as against the intervener.” The court instructed that it was incumbent on the defendant company to show that, at the time of the issuing of the attachment, the defendants therein were indebted to the attachment plaintiff, and that, there being no evidence in this case of such indebtedness, the claim of appellants that the transfer of the bicycles to plaintiff was fraudulent was not sustained. We discover no evidence upon which to have found any indebtedness, and therefore conclude that there was no error in- refusing the instruction asked, or in giving this one com-' plained of. As no prejudicial errors appear, the judgment of the district court is AFFIRMED.