Cook v. Mann

Elbert, O. J. Counsel for the plaintiff in error do not question the bona fieles of the sale by Haywood to Mann. They charge no fraud in fact, but fraud in law. The contention is that there was no such delivery to Mann of the goods sold, and no such “actual and continued change of possession,” as are required by the statute of frauds. Section 14 of the statute provides that “every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by- an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void, as [22] against the creditors of the vendor or the creditors of the person making such assignment or subsequent purchasers in good faith, and this presumption shall be conclusive.” General Laws, sec. 1264. Upon the question of “the delivery” and the actual and continued change of possession required by the statute, the books are full of decisions. We do not propose to review them. It is sufficient for the purposes of this case to say:[ (1) When the subject of the sale does not reasonably admit of an actual delivery, it is sufficient if the vendor assume the control and dominion of the property so as reasonably to indicate to all concerned, the change of ownership. The case of goods in a warehouse, bi'ick in a kiln, and lumber in a raft, are familiar illustrations where removal is not impossible, but unusual, and out of the regular course of trade. In such cases, if there is a full surrender upon the part of the vendor, and a full assumption upon the part of the vendee, of the control and dominion of-the subject of the sale, the delivery is sufficient. (2) The vendee must take the actual possession, and the possession must be open, notorious and unequivocal, such as to apprise the community, or those who are accustomed to deal with the party, that the goods have changed hands, and that the title has passed out of the seller and into the purchaser. This must be determined by the vendee using the usual marks or indicia of ownership and occupying that relation to the thing sold which owners of property generally sustain to their own property. (3) The possession must, be exclusive of the vendor. A concurrent or joint possession is not admissible. McKibben v. Martin, 64 Penn. 352; Claflin et al. v. Rosenberg et al. 42 Mo. 439, and cases cited. We find no difficulty in saying in this case that the requirements of the statute were fully satisfied. Haywood was in business at No. 228 Fifteenth street [23] in. the city of Denver, and on the 31st of December sold his entire stock of boots and shoes to Mann for $4,800. An invoice was made and delivered on the 31st, and the following day Mann took possession of the goods and the store-room in which they then were. He immediately placed his sign, “ J. O. Mann & Co.,” over the door, and continued the business at' this place for about two months, paying rental for the store-room. He then rented a store-room at No. 284 Fifteenth street, and moved the goods, all he had not sold, with others he had added • to the stock, to that place, where he continued business under the sáme firm name two or three months longer, and until they were attached as the goods of Haywood. During all this time his control and charge of the goods were such as is usual with persons engaged in merchandise in their own name and behalf. With but slight exception he was daily at the store, superintending, directing and managing the business. All the indicia of ownership usual in mercantile business were present, and there was a complete change of the control and dominion of the property. It was not necessary, in order to a complete transfer’ or actual possession, that the goods should be moved to some other store-room. This would be an unusual requirement. Nor was there any objection, the whole law being complied with, to the employment of Haywood, the vendor, to assist him in the conduct of the business as clerk. It is true that the possession of the vendee must be exclusive; that a joint or concurrent possession of vendor and vendee is not permitted. But it is also true that “the hired clerk or salesman is no more in the possession of the goods of his employer than the hired laborer is in the possession of the .farm on which he is employed to work.” Cases cited supra. We think the instructions of the court fairly gave the law to the jury. Whether under the evidence the suffi [24] ciency of the delivery and possession was matter of law for the court, we need not consider. If error, it was. error without prejudice, and not ground for reversal. These are the only assignments that need be considered. The judgment of the court below is affirmed with costs. Affirmed.