82 P. 426 | Cal. | 1905
This action was brought to recover the alleged value of cattle sold to the defendant on execution as the property of E.H. Hamlin, Jr. The plaintiff claimed that the cattle so sold belonged to it, whereas the defendant claimed that the cattle belonged to Hamlin. The verdict in the court below went for the plaintiff, in the sum of $4,358.72 1/6, for which sum judgment was thereupon rendered, together with interest and costs. The appeal was taken from the judgment within sixty days upon a bill of exceptions containing the evidence. The plaintiff is a corporation organized in the state of Nevada, engaged in the business of raising and selling livestock, particularly cattle. The corporation was managed and controlled by O.W. and A.M. Ward.
In the latter part of the winter of 1900-1901, the plaintiff brought two bunches of cattle to Honey Lake Valley, Lassen County, this state, to be fed for beef and sold. E.H. Hamlin was then engaged in buying beef cattle as the agent of W. P. Nichols, bankers, of Dutch Flat, Placer County, California, the cattle to be disposed of by Hamlin in certain markets controlled by him. In order to meet the demands of his market it was necessary for Hamlin to secure cattle ahead, place them on feed, and be prepared to meet the demands of his market as they arose. Plaintiff made an agreement with Hamlin in reference to the sale of cattle, and set a price upon the cattle of different grades, and Hamlin agreed to pay for the feeding of the cattle, and was to have the right to take the cattle out for market in such numbers as he desired, as his needs required; but it is claimed on the part of the plaintiff and respondent that under the agreement made between it and Hamlin, before he took any cattle out of the corral, he should place a check covering the value of the cattle taken out in the Nevada Bank at Reno, Nevada, or pay the amount to one of the Ward brothers; and that it was agreed that the title to the cattle was at all times to remain in the plaintiff until payment was made by Hamlin, as stated. Hamlin became indebted to the defendant on account of feed sold to him, and the defendant supposing the cattle in question *749 to have been bought by Hamlin from the plaintiff, and that they were Hamlin's cattle, in an action based on such indebtedness the cattle were attached and after judgment recovered were sold upon execution, as already stated.
The contention on the part of the appellant is, that the sale of the cattle by the plaintiff to Hamlin was an absolute sale, and they, therefore, became the property of Hamlin, notwithstanding the purchase price had not been paid. On the trial, in Hamlin's testimony, he says: "I made no agreement to pay for these cattle in case I did not take them," and O.W. Ward, one of the managers of the plaintiff, says: "He agreed to pay for them if he took them." Whether the transaction between the plaintiff and Hamlin amounted to an absolute sale of the cattle, or was a mere agreement to sell, generally termed a conditional sale, was a question to be ascertained and found by the jury from the evidence produced at the trial. "An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing." (Civ. Code, sec. 1727) It is shown in this case that the plaintiff and Hamlin agreed upon the price of the different grades of stock to be sold, and that when the prices thus fixed should be paid by Hamlin then such stock so paid for became his. A similar question arose in VanAllen v. Francis,
Appellant's counsel in his brief takes exception to instructions given by the court numbered 4, 5, 7, and 8. It is contended that the definition of a conditional sale given in some of these instructions is too broad and conflicts with that given in the others, and that the phrase "conditional sale" is used in others without qualification or definition, and that, consequently, the instructions were misleading and could only have served the purpose of mystifying the jury. It may be conceded that if the case involved a contract of sale containing conditions not affecting, or not preventing, an immediate transfer of the title, and there had been on the trial a controversy over some such conditions, some of the instructions given would have been confusing, and possibly erroneous. But the only condition of the contract of sale in question which was at all important, or about which there was any controversy at the trial, was the condition that the title to the cattle should not pass to Hamlin until the price was paid or secured. The question of the existence of this condition was the decisive point of fact in the case to be decided by the jury. Concerning this the court, in instruction 7, properly instructed the jury as follows: "7. If you find from the evidence that the sale of the cattle by plaintiff to Hamlin was intended, agreed and understood to be a conditional sale, and that the title to the cattle was not to pass or vest absolutely or unconditionally in Hamlin, then you should find for plaintiff. But if you find from the evidence that it was intended, agreed and understood by plaintiff and Hamlin that the title to the cattle was to pass to and vest in Hamlin absolutely and unconditionally, then you should find for the defendant." In view of the issues and the evidence given at the trial all the references to a "conditional sale" in the other instructions must have been intended by the court, and would necessarily have been understood by the jury, to refer to the condition concerning the transfer of title, which had been the chief subject of dispute. When so understood, all the instructions on the subject were substantially correct. It must be presumed that the jury was composed of intelligent men, and as such, they could easily understand the distinction between an absolute sale and one with a condition to be *751 complied with before the title passed, to which their attention was called by the instructions.
It is also contended by appellant's counsel that the court erred in refusing to give the following instruction No. 3 asked by defendant: "3d. The court instructs you that conditional sales as defined by the court are enforced by the courts of this state when clearly established, but that the policy of the law is against upholding secret liens and charges upon personal property; and that in this state neat cattle can be pledged or mortgaged to secure the payment of a debt upon the observance by the parties of certain formalities designed by the law to insure good faith and to give notice to the world of the character of the transaction. These provisions are, as to pledge, that the party to be secured must retain the possession of the property pledged, or some person other than the pledgor must retain such possession for him; and as to a mortgage, that it must be signed and acknowledged by the mortgagor and must have attached thereto an affidavit by the mortgagor and mortgagee that the same is made in good faith and without any design to hinder, delay or defraud creditors of the mortgagor, and it must be immediately recorded with the recorder of the county in which the property affected is situated. These provisions cannot be evaded by any mere shuffling of words. And, therefore, the court instructs you that where it is clear from the whole transaction that the ownership of the property was intended to be transferred for all practical purposes, and that the seller only intended to reserve a security for the price, any characterization of the transaction by the parties, or any mere denial of its legal effect, will not be regarded. The question, it is true, is one of intention, but the intention must be collected from the whole transaction, and not from any particular feature of it; and if you believe from the evidence that the Ward Land and Stock Company intended by its agreement to transfer to E.H. Hamlin, Jr., or through him to W. D. Nichols, the ownership of the cattle on the James Mapes place for all practical purposes, and that its intention in making the agreement was only to reserve a security for the price, then the court instructs you that title passed from the corporation and you must find for the defendant."
A great portion of this offered instruction is taken up *752 with a statement concerning the policy of the law in reference to secret liens and charges upon personal property, and the requirements of the law in reference to chattel mortgages or pledges of personal property as security for indebtedness. These questions are entirely outside of the evidence in the case, and calculated to mislead the jury. The policy of the law in reference to any particular question may aid the court in its interpretation or construction of the law in any question that may arise in any case before it; but this is not the duty of the jury. It is the province of the jury to arrive at and determine the ultimate facts from the evidence produced in the case. Portions of the instruction in question, if detached from the objectionable portions referred to, might have been properly given, but they are embraced substantially in those given, and, consequently, the appellant suffered no harm in the refusal of the judge to give the instruction in question.
The plaintiff, as already stated, is a corporation organized in the state of Nevada and is a foreign corporation as to this state, and had not filed its articles of incorporation in this state, as required of foreign corporations, prior to the commencement of the action, but it did do so prior to filing its amended complaint. The language of the law is that a foreign corporation which has not complied with said act shall not "maintain or defend any action or proceeding in any court of this state until such corporation shall have complied with the provisions of section one of this act." Upon this state of the case, appellant contends that a compliance with the act in question is a condition precedent to the commencement of the action, and therefore that the action should have been dismissed. This question, however, was directly decided by this court adversely to the contention of appellant in California Sav. andLoan Soc. v. Harris,
The court therefore had jurisdiction to try the cause.
Judgment affirmed.
Shaw., J., and Angellotti, J., concurred.
Hearing in Bank denied.
