Williams v. Porter

41 Wis. 422 | Wis. | 1877

LyoN, J.

Sec. 1, cb. 113, Laws of 1873,is as follows: “No contract or agreement for tbe sale of personal property, by tbe terms of which tbe title or right of property is to remain in tbe vendor, and tbe possession thereof in tbe vendee, until tbe purchase price is paid, or other conditions of sale are complied with, shall be valid against any other person than tbe parties thereto, unless such contract or agreement shall be reduced to writing, and tbe same or a copy thereof shall be filed in tbe office of tbe town clerk of tbe town where said vendee resides, or, if be shall not be a resident of tbe state, then in the town where such contract or agreement is made; and such town clerk shall file such contract or agreement in tbe same manner, and shall receive tbe same compensation therefor as is provided by law for filing chattel mortgages: provided, tbat tbe effect of such filing shall not extend beyond one year from maturity of the contract price, or consideration therein reserved.”

Tbe original contract between tbe plaintiff and Mallory in respect to the sale of horses is within this statute and governed by it. The manifest object of the statute is to place such contracts on the footing of chattel mortgages; and if a contract of that hind is not reduced to writing and filed in the proper office, it is void as to third persons, and the property affected by it in the possession of the vendee is liable to seizure as his property on an execution issued upon a judgment against him. The circuit judge so instructed the jury, and the instruction is favorable to the defendant.

Hence, so far as the execution creditors of Mallory (whom the defendant represents) are concerned, Mallory was the absolute owner of the property in controversy down to the time of the transactions between him and the plaintiff in October, after Mallory had failed to mab;e the first payment on the horses. But these transactions changed their relations. As between themselves, the original contract was thereby terminated, and the plaintiff became the absolute owner of the property in controversy, and could have taken it at any time and held it against Mallory. It is quite immaterial that the horses delivered by Mallory to the plaintiff in October were after-wards exchanged for other horses. The plaintiff’s title to the latter attached immediately upon such exchanges, on the familiar principle, that if A. exchanges the property of B. for other property, the title to such other property is in B., if he elects to ratify the trade.

It follows that when the defendant seized the property, it belonged absolutely to the plaintiff, as between him and Mallory. Can the plaintiff hold the property against an execution creditor of Mallory?

We have seen that the transactions of October between Mallory and the plaintiff were equivalent to an absolute sale of the property by the former to the latter. But such sale, although accompanied by an immediate actual delivery of the horses and a constructive delivery of the wagon to the vendee, was not followed by an actual and continued change oí possession of tbe property sold, and is therefore presumptively fraudulent and void as against tbe creditors of tbe vendor. Tbe burden is upon tbe plaintiff to prove tliat the purchase was made by him in good faith and without any intent to defraud the creditors of Mallory. R. S., ch. 107, sec. 5.

It seems to us that the plaintiff has fully met the requirements of the statute by uncontroverted evidence. The sale was made in pursuance of the original agreement of the parties to it, to the effect that the plaintiff should have the property if Mallory failed to pay for the horses; and the reasons disclosed for leaving the property in the possession of Mallory are entirely satisfactory. Moreover, when the plaintiff became the owner of the property in October, the execution creditors had not obtained their judgment against Mallory ; the plaintiff did not know that they had an action pending against him; and it does not appear that they were then creditors of Mallory, or that the latter owed a dollar to any person other than the plaintiff, and his indebtedness to plaintiff was canceled by their October agreement. Under these circumstances, we think it is a verity in the case that the agreement in October was made in good faith by the plaintiff, and without any intent on his part to defraud any one.

It necessarily follows from the views above expressed, that the judge might properly have directed the jury to return a verdict for the plaintiff. Such being the case, it is quite immaterial whether the instructions are strictly accurate in every respect. If there is error in them, it cannot possibly prejudice the defendant, since the jury could not have .found otherwise than for the plaintiff. Balliet v. Scott, 32 Wis., 174; Andrews v. Jenkins, 39 id., 476.

It only remains to consider the objection to the sufficiency of the verdict. It will be observed that the verdict is special, there being no general verdict for the plaintiff, and that there is no express finding that the defendant unlawfully detains the property. This is the objection taken to the verdict.

In tbe recent cases of Hutchinson v. The C. & N. W. R’y Co., McNarra v. The Same, and McHugh v. The Same,^* it was held that a judgment on a special verdict will not be reversed for failure of the jury to find upon any of the isisues, if the uncontradicted evidence proves the issue in favor of the prevailing party. In the i present case, the defendant in his answer admits the taking of the property, and the undisputed evidence proves that it was duly demanded by the plaintiff, and delivery thereof refused, before the action was commenced. It is thus settled that the defendant detains the property from the plaintiff; and the finding that the latter is the owner and entitled to the possession thereof, demonstrates that su¿h de-tainer is unlawful. Within the rule of the above cases, the omission complained of cannot prejudice the defendant, and is not, therefore, ground for disturbing the judgment.

By the Oov/rt. — Judgment affirmed.

* All these cases will be found in the present volume.