Dodge v. Jones

7 Mont. 121

• Court: Montana Supreme Court
• Decided: July 15, 1887
• Status: Published

Opinions

The opinion states the case.

McConnell, C. J.

In this case, the court, sitting instead of a jury, gave judgment for defendants. A motion for a new trial was made and overruled; and from the order overruling the motion for a new trial, and the judgment, the plaintiff below appeals to this court. This is a ease of sale and delivery, under section 169, page 436, Revised Statutes of Montana.

The court made fifteen special findings: “1. Defendant Elling, ever since 1880, has been a creditor of James and Robert Kirkpatrick; 2. Defendant Elling, in October, 1885, reduced his claim against said James and Robert Kirkpatrick to a judgment; 3. Said judgment is still unpaid to the amount of $2,985; 4. That in October, 1881, said James and Robert Kirkpatrick sold to plaintiff Lydia C. Dodge twenty head of horses and mares; and that the said horses and mares thus sold, and their offspring, are the same property mentioned in the complaint; 5. That the plaintiff and Robert Kirkpatrick went into the corral of Kirkpatricks, and the twenty head were pointed out to her; 6. That the Kirkpatricks owned a large band of horses branded ‘K’ on left shoulder, and those sold to plaintiff had this brand on them; 7. That the horses bought by plaintiff were turned out on the range with the rest of Kirkpatricks’ horses, and continued to run with them until the sheriff levied on them in July, 1886; 8. That James and Robert Kirkpatrick have at all times, and continuously, had the care, control, and use of said horses, ever since plaintiff claims to have bought them; 9. That there was no immediate delivery, or continued change of possession, of the horses mentioned in the complaint, from Kirkpatricks to the plaintiff; 10. That plaintiff’s brand was put upon the horses in the spring of 1884, after Kirkpatricks had made an assignment; 11. That the horses mentioned in the complaint were by the defendant Jones levied upon and taken into his possession, by virtue of a writ of execution in the case of Elling v. James and Robert Kirkpatrick; 12. That the plaintiff replevied, and now has the possession of, said horses; 13. The court finds that the plaintiff paid Kirkpatricks twelve hundred dollars for said horses; 14. The court finds that there was and is a constructive fraud in said sale, under the statute.”

There is no controversy but that the appellant bought the twenty head of horses from James and Robert Kirkpatrick, in October, 1881, and paid twelve hundred dollars for them, and that this was done in perfect good, faith. It is equally admitted that respondent Elling was the creditor of James and Robert'Kirkpatrick in 1880; that in -1885 he put his claim into a judgment, and in July, 1886, had an execution issued, and levied upon the twenty horses sold to the appellant in 1881, and the increase thereform, amounting to twenty more; and the only question is, Was the sale made by the Kirkpatricks to the appellant void under the above statute, for the want of an immediate delivery, followed by an actual and continued change of possession, as required by said statute? Said section 169, page 436, Revised Statutes of Montana, is as follows, to wit: “ Every sale made by a vendor of goods and chattels in his possession, or under his control, .... unless the same be accompanied by the immediate delivery, and followed by an actual and continued change of posses, sion, of the thing sold and assigned, shall be conclusive. evidence of fraud, as against the creditors of the vendors.” The court below found that there was no immediate delivery, or actual and continued change of possession, of the horses mentioned in the complaint, from the Kirkpatricks to the appellant. This finding is a conclusion of law from the facts found, or rather, it is an ultimate fact which the law concludes from the facts and circumstances surrounding the sale. A delivery is a question of act and intent,— a mixed question of fact and law. All the facts attending the sale are not in the special findings of the court. When the horses were picked out in the corral, and sold to the appellant, a bar was branded on those sold, under the “ K,” and then they were turned out on the range with the horses of Kirkpatricks, and there was a bill of sale executed and delivered to appellant.

No particular act or formal ceremony is necessary to make a delivery in law. Any act done, coupled with the intent to change the ownership, which has the effect to transfer the dominion over the thing sold to the buyer, is a delivery. Any small chattel capable of being handled may be delivered by handing it to the buyer, as selling goods across the counter in a store; but horses are not capable of this manual kind of delivery. We think when the bar was branded under the “K,” so that the appellant’s horses could be distinguished from those of the Kirkpatricks, and they were turned out on the range, those acts were done with the intent to transfer the ownership and dominion over these horses to the appellant. When they were on the range, the actual possession was in no one. The range was common pasturage for everybody, and the constructive possession accompanies the title, and was in the appellant. What more could have been done to constitute a delivery? The law does not require a proclamation of delivery to be made, nor that these horses should be temporarily separated from- the ■ others, or put in a corral or inclosure. All that was necessary to be done was done. There was a permanent, identification of her horses, and the relations of the parties to these horses were changed,. But when this was done, they were turned out of Kirkpatricks’ corral, and went off on the range, thus, severing all connection between them and their former owners. By this there was an unmistakable delivery and, actual change of possession. We do not review; the findings of fact by the court in coming to this conclusion; the facts are not disputed. But we hold that" whether the facts found constitute a delivery is a question of law, and that the court erred in its. conclusion of law, when it found there was no immediate delivery. The question as to whether there was such a venting as the statute contemplates does not enter into this discussion. The horses were, not vented in any sense of that word. The effect of putting the bar under the “ K” was to distinguish-them from the horses of the vendors, and to be- looked to, in connection with other facts, to determine whether there was a delivery.

But as we are construing the statute of- frauds* above referred to, perhaps it would be well to further notice the term “ delivery,” as used in the authorities. It is sometimes used to denote the transfer of title. Upon the subject of constructive possession, Wait, in his Actions and Defenses (volume 5,.p. 574), says: “A sale of personal property must, in general, be accompanied by a change of possession of the thing sold.. The law, however, does not require the parties to a sale to perform ,aqts extremely inconvenient, if not impossible, but accomodates itself to their business, and the nature of their property; and therefore, as some kinds of property are not susceptible - of immediate manual delivery, the- law requires only such, deli very and change of possession as the nature of the property will allow [citing Long v. Knapp, 54 Pa. St. 514; Bailey v. Ogden, 3 Johns. 399]; and, in general, the assertion of complete authority on the part of the vendee, by acts consistent only with ownership, and assented to by the vendor, constitutes a sufficient constructive delivery,” citing authorities. The circumstances which are to be held tantamount to actual delivery ought, however, to be so strong and unequivocal as to leave no reasonable doubt as to the intent of the parties. Clark v. Draper, 19 N. H. 419; Cartwright v. Phœnix,7 Cal. 281. “Selecting and marking sheep in the possession of a third party, who is desired to retain possession of them for the purchaser, is a sufficient delivery to complete the sale and pass the property.” Barney v. Brown, 2 Vt. 374. And when the seller pointed out certain cattle of his, which were running with others in a pasture, and designated their price, which the purchaser agreed to take as they were, and at the stipulated price, it was held that this constituted a delivery of the cattle. Brown v. Wade, 42 Iowa, 647; Sutton v. Ballou, 46 Iowa, 517.

But it is needless to multiply authorities on this subject. The facts found and admitted are: 1. Sale of the horses to appellant by James and Robert Kirkpatrick; 2. Price paid, and bill of sale executed and delivered; 3. Bar branded under letter “K” on horses sold; 4. Turned out of corral of vendors upon the “ range ”; 5. They were range horses; 6. All this done within one hour. We hold that this constitutes an immediate delivery and actual change of possession.

The court below found that James and Robert Kirkpatrick have at all times, and continuously, had the care, control, and use of said horses, ever since plaintiff claims to have bought them. The appellant, in her assigment of errors, says that this finding is not justified by the evidence, and is against the law. The statute provides that this change must be “actual and continued.” When the title to the chattel is in a person, and it is not so situated as to be under his immediate dominion, and is in the actual possession of no one else, it is said to be in his constructive possession. The horses, when in' the corral of the Kirkpatricks, under their immediate dominion, were in their actual possession; but when they left this inclosure, and were on the “ range,” they were in the actual possession of no one, but in the constructive possession of the owner. Now, if we are right in our conclusion that there was a delivery and a change of possession, and that the horses, when on the “ range,” were in the constructive possession of the owner, does the record show that the vendors of the appellant regained possession, so as to bring this transaction within the statute of frauds?

But before doing this, it is necessary to construe the meaning of the words “continued change.” Does it mean that the chattel sold shall never again come into the possession of the vendor without being subject to seizure for his debts ? Certainly not. If this was the correct meaning of it, the law would soon stop the whole machinery of trade, and no one would dare to let his vendor have the possession, ever so short a time, of any chattel he may have obtained from him. The purpose of the statute was to prevent fraudulent and colorable sales, made to hinder and delay creditors, in which the vendor never parts with the thing sold, or if he does, it is only for a short time, when it is returned to him, and he continues to use and enjoy it. Hence the statute provides that there shall be an “ immediate ” delivery, and there shall be an “ actual ” change of possession, and this change shall be a “ continued ” one. But continued how long? We think for a reasonable length of time, — such a length of time as will, preclude the idea that- the sale is a colorable one. To give this statute any other construction would be to convert its beneficent provisions into an engine of injustice and oppression.

In the case of Stevens v. Irwin, 15 Cal. 503, the supreme court of the state of California, in construing their statue of frauds, which is identical with ours (Mr. Justice Baldwin delivering the opinion of the court), said: “ In this controversy as to what the true common-law rule is, the legislature wisely adopted, by statute, the construction given by the supreme court of the United States; for this course had at least the advantage of giving to the state one uniform rule in all courts on this important subject. But we apprehend that the legislature never intended, by this statute, to go beyond the extreme rule adopted by the supreme court of the United States, and the English cases on which that rule rests. There was no reason of policy for such extension; indeed, such extension might defeat, in some degree, the reason for adopting the federal rule. The rule, as defined by our statute, is almost in the language of that given in the cases which establish the rule in England. It is true that some stress is laid on the words ‘ actual and continued change of possession'; but these words are suggested by the facts and principles of the decided cases referred to. The word ‘ actual' was designed to exclude the idea of a mere formal change of possession, and the word ‘ continued,’ to exclude the idea of a mere temporary change. But it never was the design of the statute to give such extension of meaning to this phrase, * continued change of possession,’ as to require, upon a penalty of a forfeiture of the goods, that the vendor should never have any control over or use of them. This construction, if made without exception, would lead to very unjust and very absurd results. The vendor would never become trustee of the goods without their being forfeited or liable for his debts. If a livery-stable keeper hired a horse to the original vendor, it would be liable for his debts; or if a boarder came into a room, the furniture might be liable for his debts if he once owned it. The ‘ continued change of possession/ then, does not mean a continuance for all time’ of this possession, or a p.erpetual exclusion of all use or control of the property by the original vendor. A reasonable construction must be given to this language, in analogy to the doctrine of the courts holding the general principles transcribed in the statute. The delivery must be made of the property. The vendee must take the actual possession. That possession must be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee. It must be such as to give evidence to the world of the claims of the new owner. He must, in other words, be in the usual relation to the property which owners of goods occupy to their property. This possession must be continuous; not taken to be surrendered back again; not formal, but substantial. But it need not necessarily continue indefinitely, when it is bona fide and openly taken, and is kept for such a length of time as to give general advertisement of the status of the property, and the claim to it by the vendee.”

This case is referred to and approved by Sanderson, C. J., in the case of Godchaux v. Mulford, 26 Cal. 325.

If Robert Kirkpatrick merely had the charge of the horses after they were sold, as an agent, and held them ope.nly in that capacity, it may well be doubted whether that would bring the case within the prohibition of the statute, which says the change of possession must be continued. In the case in 26 California, already cited, the court, discussing the effect of putting the vendor in possession of a stock of goods, to sell them as a clerk, says: “Such employment is undoubtedly a strong circumstance tending to show that there has not been such an actual change as the statute requires; but it is not per se a fraud which admits of no explanation. As is well said by counsel for the plaintiffs: ‘A hired clerk or salesman is no more in the possession of the goods of his employer than a hired laborer is in possession of the farm on which he is employed at work.’ The employment of the vendor in a subordinate capacity is colorable only, and not conclusive on the question as to whether there has been an immediate delivery and an actual change of possession. He cannot be allowed to remain in the apparently sole and exclusive possession of the goods after the sale, for that would be inconsistent with such an open and notorious delivery and actual change as the statute exacts, in order to exclude from the transaction the idea of fraud. But if it be apparent to all the world that he has ceased to be the owner, and another has acquired and openly occupied that position; that he has ceased to be the principal in the charge and management of the concern, and become only a subordinate or clerk, — the reason of the rule announced in the statute is satisfied. The immediate delivery, and actual and continued change of possession, are the ultimate facts by which, according as they are present or absent, the statute determines the legal character of the sale; but the instruction in question makes the bare employment of the vendor by the vendee, in a subordinate capacity, regardless of the fact whether such subordinate capacity is open and notorious or not, the ultimate fact by which the statute determines the question of fraud; whereas, it is only a probative fact to be taken into account in determining the ultimate facts mentioned in the statute, and by which the question of fraud is determined.” Warner v. Carlton, 22 Ill. 424.

Now, let us see what evidence there is to support the finding of the court below, that the possession remained with the vendors of the appellant. She says she left the horses in charge of the Kirkpatricks, and went to Santa Barbara, California, to spend the winter. The horses were eared for by the Kirkpatricks up to some time in 1884. “ In that year I received a letter from the Kirk- - patricks informing me that they were intending making an assignment for the benefit of their creditors, and that there might be danger to my horses, as they were not then branded. I then had them branded with the ‘apple’ brand which my sister had caused to be made for me. My reason for not branding the horses at the time of the purchase of them by me from the Kirkpatricks was that I thought it very cruel to do so. In April, 1882, when I came back, I saw the horses nearly every day. In September, 1882,1 went to Lynn, Massachusetts, and remained there nearly two years. During that time Robert Kirkpatrick had charge of the horses for me. At the time I bought the horses they were branded with the letter * K ’ on the left shoulder, and they were vented with a straight bar under the ‘ K.’ ”

Robert Kirkpatrick testified: “The horses were sold to Miss Dodge in 1881. At the time of the purchase by her they were in a corral. They were branded ‘ K ’ on the left slioulder; vented them by putting a bar under the ‘ K.’ In the spring of 1882, I got up some of the horses with our brand on them. During the years 1882, 1883, and part of 1884, I had charge of the horses. We put the ‘apple’ brand on the horses in 1884- "Monroe Mann gave us contract to breed the mares to the stallions. Know the gray mare; used her. Do not remember of using or working more than one of the horses. Allen Black broke a five-year-old horse, at my request, in the spring of 1886. They were range horses, — stock horses. In 1884 Monroe Mann was the agent of Miss Dodge, and I had charge of the horses under Mann’s direction.”

Mr. Jones testified that the horses were in charge of the Kirkpatricks from the date of the sale, or assignment, which they made of their own stock, which was in 1883.

It will be seen from the testimony that the horses were range or stock horses. The appellant bought them in October, 1881, and spent the winter following in California, and left them, not in the possession of the Kirkpatricks, but on the range, in the possession of no one, but in the charge of her vendors. Bobert Kirkpatrick says he got some of them up in the spring of 1882, and that is the first act of control he exercised over them, so far as the record discloses. The sale was made in October, 1881; there was delivery and change of possession, and no act of control by the vendors for five or six months afterwards.

1. We find then, that, as a matter of law, from the facts found by the court, with the additional facts which are admitted, there was an immediate delivery at the time of the sale, and that the court, in concluding there was not, from the facts found and admitted in argument before us, was in error.

2. The court erred in finding that there was not a change of possession, when he found the fact that the horses were turned out of the corral of the Kirkpatricks on the “ range.”

3. The court below, in its findings, having erroneously concluded that there was no delivery, and no change of possession, necessarily could not have considered whether an interval occurred between the severance of the possession of the Kirkpatricks and the time when they regained the possession, if they did regain it at all. If there was a continued change of possession for a reasonable length of time, then they might retake the possession, as the agents of the appellant, .without being obnoxious to the statute of frauds. The question as to whether there was a regaining of the possession, and if so, when it took place, and the nature of it, and whether it was a reasonable time after the actual change of possession had taken place, as well as what would be a reasonable time, under the circumstances, are all questions of fact for the jury upon a new trial, or for the court, if it sits again in lieu of a jury.

' Let the case be reversed, and remanded for a new trial, under the principles set forth in this opinion

Galbraith, J., concurs.