Worman v. Kramer

The opinion of the court was delivered, May 17th 1873, by Agnew, J. This ease was tried below on the grounds of fraud in law and fraud in fact, and in the argument the facts bearing on each branch have been somewhat blended. Fraud in law in this case, had relation to a retained, or a concurrent possession, and not to the intent to hinder and delay creditors, which enters into the question of fraud in fact. It is only by separating the evidence bearing distinctly upon each ground, that we can judge properly of the correctness of the judge’s charge. Looking at his charge in this light, we do not discover any good reason to complain of it, except in two respects, which shall be noticed. On the question of fraud in law, one fact of importance must not be overlooked, to wit, that the actual possession of the property appears to have been in the bailee of Kramer. The coach and horses were kept at Keim and Einstein’s livery stable, and on the day of the sale to Kramer he bargained with Einstein to keep the coach, and the horses at hay, at $1.50 per week. In Linton v. Butz, 7 Barr 89, it was held that a sale of personal property in the hands of a bailee is good against an execution-creditor, though there be no actual delivery, if the vendor do not retake the possession. We (jannot say, therefore, that there was error in that part of the clm-ge set out in the first assignment of error; read as it must be, with the sentences immediately preceding and succeeding, in which it was left to the jury to say whether there had' been an open, visible and notorious transfer of the possession. The mere employment of Berkenstock afterwards as a driver, would not, in itself, stamp the character of a legal fraud upon the sale, if the property was really kept by a third party, as bailee of Kramer, in an open and notorious manner. The facts were for the jury, as to how the coach and horses were kept, and for whom; and whether Berkenstock returned into such an immediate and visible possession, as deprived the transaction of that open and notorious character, which would fairly indicate to the public an actual transfer of the possession at the time of the sale, and following it. [386] The evidence in this case did raise a serious question as to the openness and the visible character of the possession. The intimate relations Berkenstock sustained to the property, after the sale, raised a question of fact, whether his possession was not, at least, concurrent with that of Kramer, and the defendants were, therefore, entitled to full and clear instructions on that point. In part of the case the learned judge fell into an error, by his qualification of the instruction, that a concurrent possession exists only where the person in actual possession of the property has some interest in' it as a part owner. There was no question as to a part ownership, either as tenants in common or as partners. The sale was out and out, and the question was only upon the possession. The defendants alleged that the possession of the coach and horses was, at least mixed or concurrent between Kramer and Berkenstock, and if so, it was insufficient to indicate an' open and complete transfer of the possession, and in this view they were entitled to an answer which would not mislead. The concurrent possession alleged, was such as that spoken of by Judge Strong in Brawn v. Keller, 7 Wright 104, where the control and use of the property by the vendor and vendee, were so confused and mixed, as to leave the question of possession uncertain. If that were the kind here, the defendants were entitled to an instruction that the transfer of possession was not such as to protect the sale, no matter how honest and fair. But when the judge defined a concurrent possession to be one only where there is a part ownership of the property, he narrowed the instruction to the prejudice of the defendants. There was no evidence of a tenancy, either 'joint or in common, and the jury were, therefore, led away from what was meant by a concurrent possession; that is to say, a mixed or uncertain possession, apparently as much in one as in the other. We think he erred, also, in refusing to give the defendants any benefit from the offered return of the brown horse, bought by Kramer of Snyder. If, as the evidence tended to show, the constable, after he found he had made a mistake in levying on the horse, as the property of Berkenstock, offered to return him to Kramer, who refused to take him, and the former then returned him to the stable, whence he took him, with notice to, or the knowledge of Kramer, it went in mitigation of damages. It might not atone for the trespass, in the taking, but if the horse were offered back, in as good plight as when taken, and in a reasonable time, clearly it was the duty of Kramer to receive him, unless he could show a good reason for not doing so. Eor these reasons the judgment is reversed, and a venire facias de novo is awarded.