13 Minn. 174 | Minn. | 1868
By the Court -In this case the defendant sets up as an answer to the complaint that “ at and long prior to the accruing of the plaintiff’s supposed cause of action, he was and still is * * * * * engaged in the military service of the United States” as a 1st lieutenant of cavalry, and he insists that the plaintiff’s remedy against him is “ suspended by the act of March 2, 1865.” Section 1 of this act provides that officers of the defendant’s alleged rank shall be “ exempt from service of all civil process ” during their military service. The Legislature have not declared the service of process void, but they have attempted to confer a personal privilege upon those who fall within the class designated.
The Court before which this action was tried below, without a jury, found that on the 7th day of September,. 1863, one B. II. Bennett was the owner of 259 ewe sheep, and that on that day Bennett delivered them to one II. II. Williams under a written contract, in which Williams bound himself “ to keep said sheep three years for the increase therefrom,” and to deliver 950 pounds of wool annually immediately after shearing, with a stipulation that “ at the expiration of the three years said Williams shall return and deliver to said Bennett as many sheep as were lent to him, and of as good quality, weight and age as those received by him,’-* &e. The Court further found that on the “23d day of November, 1863, the said E. H. Bennett demanded and threatened to take the said sheep which he had let to the said II. II. Williams out of his possession, on account of the danger of their being seized by the creditors of the said H. H. Williams, and the same were then and there counted out and separated from the balance of the flock upon the premises of said H. H. Williams; but at the request of the said II. H. Williams, (who was unwilling to give them up), that they might be left and turned over to this plaintiff, the said B. H. Bennett consented to such - arrangement, and the said original contract was therefore assigned to said plaintiff * * * * by the said JEL H, Williams ; and said plaintiff verbally consented then and there to take said sheep under the terms of said contract, and there
"We do not think it was necessary for the plaintiff to furnish the contract, or a copy of it, to the officer, nor to set out all its details. If the affidavit disclosed the legal effect of the contract, so far as was necessary to distinctly inform the officer that the execution debtor had no rights in the property levied upon, and that whatever rights he inay at any time have possessed, had been transferred to the affiant for a valuuable consideration; and what the general nature of the affiant’s rights was, we think the object of the statute was . attained. Nor do we discover any variance material in this case between the grounds of the plaintiff’s right to the possession of the sheep, as stated in the affidavit, and as found by the Court. It is said that the “ verbal and formal delivery,” found to have been made by Bennett to the plaintiff, should not have been considered, because it was not the ground of title or right set up in the affidavit. But the assignment appears .to have been made at Bennett’s request ; there is nothing to show that H. IÍ. Williams had given up his right to the sheep before the execution' of the assignment, and under all the circumstances, we are of opinion, that the delivery would amount to nothing more than evidence of consent on the part of Bennett to the new arrangement, and an acceptance of the plaintiff in the place and stead of his father. This is substantially what the affidavit shows.
As to the obligation of a party (upon whose property an execution against another is levied,) to make the affidavit provided for by the statute, as a pre-requisite to an action against the levying officer, we-do not now determine. The subject is -certainly not free from difficulty.
We are clear that the agreement in this case, taken as a whole, and considered in all its parts, must be held to be an. agreement of bailment, and not of sale. The intention of the ■ parties as it appears upon the face of the contract, is to govern. The contract reads as follows :
“'Article of agreement made this 7th day of September, 1863, between E. H. Bennett, of Cottage Grove, Minnesota, of the first part, and H. H. Williams, of Shakopee, Minnesota, of the second part, witnesseth; that the said Bennett has this day lent to said Williams two hundred and fifty-nine ewe 'sheep, of good weight, quality, and aged as per memorandum on back of this article. In consideration of which letting said Williams covenants and agrees with said Bennett to keep said sheep three years for the increase therefrom, and deliver annually, immediately after shearing thereof, to said Bennett or to his order., nine hundred and fifty pounds of wool cleanly washed, and at the expiration of the three years, said Williams shall return' and deliver to said Bennett, as many sheep as were lent to him, and of as good quality, weight and age as thoso received by him; and said Williams shall during said three years annually pay all taxes levied or assessed upon said sheep, at the time when taxes shall be paid, as provided by law. It is further covenanted and agreed that if any of said sheep shall die, or become lost or sold, or if said Bennett shall believe said Williams is not taking due care of said sheep, or is unfaithfully performing his agreement in any manner, or is neglecting to shear said sheep, or is neglecting to pay said taxes thereon, in such case said Bennett may take immediate possession of the sheep remaining in the possession of said
E. H. Bennett,
H. EL Williams.”
It is to be observed, that in drawing this contract, the parties appear to have exercised some care to prevent its being construed as a contract of sale. The language is “ the said Bennett has this day lent,” not sold, the sheep.. Williams is to return as many sheep as were lent to him. Williams agrees to keep said sheep three years. He is to deliver the specified amount of wool annually, “ immediately after shearing thereof.” He is to heep them “ for the marease therefrom.” He is to pay the taxes upon said sheep. Why stipulate to pay the taxes on his own 'sheep? If “ any of said sheep shall die, or become lost or sold, or if said Bennett shall believe said Williams is not taking due care of sand sheep, or is neglecting to shear said sheep, or is neglecting to pay said taxes thereon, * * * Bennett may take immediate possession of the sheep remaining,” &e. Such taking of possession is not to work a “ forfeiture of the right of said Bennett to recover from said Williams all the damages he may have sustained by reason of the death, loss, or sale of any of said sheep.” How could Bennett sustain damage by the death, loss, or sale of Williams’ sheep ?
We think these provisions are not fairly reconcilable with the idea ¡that the transaction between these parties was a sale.
We believe that we have considered the principal matters relied upon by the appellant in this case. There were several minor points made which it is not necessary to answer at length.
There are also several points made on both sides with regard to the pleadings and evidence, which we will not consider in detail. We think that none of them show error to the prejudice of the appellant.
The judgment is affirmed.