W. Devries & Co. v. Haywood

Reade, J. The objection to the ruling of his Honor in regard to the testimony of the witness Haywood, was abandoned in this court. It is not controverted that the goods levied on as the property of the debtor, Phillips, were his property a short tíme before the levy: nor is it controverted that, before the levy, Phillips had sold the goods to the party interpleading, Haywood: nor that Haywood had the right to interplead, provided the property in the goods remained in him. But the plaintiff alleges that Haywood had sold the goods to one Jernigan, and thereby lost his right to be heard. If this were the state of facts, the present is a fruitless controversy; for whoever succeeds, the property will remain Jernigan’s, and the *88 costs are the only matter of interest. The question is, did Haywood sell to Jernigan; and in this issue the burden of proof is on the plaintiff. The plaintiff offered evidence tending to show a sale from Haywood to Jernigan, i. e., that Haywood said he bad sold them, and Jernigan said he had bought them; and there was evidence tending to show a delivery. Haywood offered evidence tending to show that there was no sale, and that whatever was said or done which had the appearance of a sale, •was a mere contrivance between himself and Jernigan to “ save the goods,” and to keep the Sheriff from seizing his goods as the property of Phillips. Under this conflicting evidence, his Honor left it with the jury to say what was the true character of the transaction between Haywood and Jer-ingan; — explaining to them that if the parties intended a sale, it was a sale, and passed the title to Jernigan; but if it was only a sham or contrivance to deceive the Sheriff, and prevent him from taking Haywood’s property for Phillips’ debt, it could not be a sale. We think that instruction was right. The plaintiff then asked for special instructions to the effect that if the testimony of the plaintiff’s witnesses was believed, there was a sale from Haywood to Jernigan, without regard to the intention oí the parties. His Honor gave the instructions with the qualification, that the facts were sufficient in form to constitute a sale, if it was the intention of the parties that they should; otherwise, there was no sale, The question intended to be presented is, whether, when the words and acts of parties are sufficient in form 'to make a contract, if so intended, the intention can be shown to be variant from the ordinary meamng of the ivords and acts. A contract is the agreement of two minds: the understanding and intention of the parties are the very gist of the matter. What was the agreement, the understanding, the intention, is always a question for the jury — whilst the legal effect of the agreement, is a question for the court. In other *89 words, tbe 'terms must be agreed upon, by tbe parties or found by tbe jury, and then they are to be construed by tbe •court. In our case tbe terms were not agreed upon ,• (indeed, it was not agreed that there was cmy contract at all); and therefore it was properly left to tbe jury. This would be true even if Jernigan were attempting to set up tbe contract. But be is not. Tbe plaintiff is in tbe predicament of trying to set up a contract between other parties, when both parties •deny that there was any contract between them. It was also contended by tbe plaintiff, that inasmuch as Haywood bad told tbe sheriff that be bad sold tbe goods to ■Jernigan, and bad deceived tbe sheriff, be was now estopped to deny it. It may be that if Haywood bad told tbe Sheriff that tbe goods were tbe property, of Phihips, and tbe Sheriff bad been deceived thereby, and levied on them as tbe property of Phillips, Haywood would have been estopped to deny tbe title of Phillips, to the injury of tbe Sheriff or tbe plaintiff, whom be bad deceived. But tbe Sheriff was pursuing tbe goods as tbe property of Phillips, and was not prevented ■or deceived by Haywood in that regard; and tbe fact that he told a falsehood, if be did, in regard to bis transaction with Jernigan, in bo way affected tbe Sheriff or tbe plaintiff: Wallis v. Truesdell, 6 Pick. 455. Again, it was insisted by tbe plaintiff, that Haywood could not claim tbe property,.because, according to bis own showing, tbe transaction between him and Jernigan was a sham, a fraud, and that tbe maxin applies, ex turpi causa non oritu/r aetio. Tbe answer is that Haywood claims nothing under that transaction, but claims against it, whatever it was, and under bis purchase from tbe debtor Phihips, which was found to be fab. Again, it was contended by tbe plaintiff, that tbe effect of tbe fraudulent transaction between Haywood and Jernigan was to pass tbe title to Jernigan as against Haywood, whatever might have been its effect as to others. Waiving *90 whatever objection there may he to the right of the plaintiff to avail himself of a transaction like the one in question, in which he has no interest, when neither of the parties seeks-to set it up, — the answer is that the jury have found that there was no transaction, fraudulent or other, by which the parties intended to pass the title out of Haywood to Jerni-gam If so, of course, there was no sale, as there can he no-contract against the intention of the parties. The admission of evidence to show this, does not contravene the rule that words and acts, nothing else appearing, are to be understood in their ordinary acceptation, or the rule that when the terms are ascertained, the legal effect is a question for the Court. There is no error. Per Curiam. Judgment affirmed.