Weil v. Nevitt

Mr. Justice Elliott delivered the opinion of the court. [13] Only a few of the matters assigned for error need to be noticed in this opinion. 1. Since this appeal was taken, the words “ stock in trade ” in the exemption statute have been held to apply to the merchant or shopkeeper, as well as the mechanic, and to include the stock of goods kept on sale by the merchant,.as well as the tools of the mechanic or miner. This question was thoroughly considered in an opinion prepared by Mr. Commissioner Pattison and approved by this court. The reasoning, of that opinion need not be repeated. See Martin v. Bond, 14 Colo. 466. No matter what opinion individuals may entertain regarding the expediency or morality of the liquor traffic, so long as the government recognizes the sale of intoxicating liquors as lawful, any one regularly carrying on business as a saloon keeper is entitled to have his property in such liquors protected the same as other property; he is a liquor merchant, and his liquors are his “ stock in trade.” 2. At the trial, defendants moved for a nonsuit upon the ground that plaintiff did not give sufficient evidence of the license under which he claimed to be doing business at the time of the seizure of the goods. This motion was overruled. The defendants, also, objected that the charge of the court to the jury allowed a recovery in favor of plaintiff without proof that he was a duly licensed saloon keeper. It is unnecessary to determine whether plaintiff was bound to aver and prove that he was a duly licensed saloon keeper in order to maintain an action of this kind. For, even if the evidence offered in his own behalf was not sufficient to sustain such averment, the evidence introduced by defendant clearly showed the existence of the license. Hence, the ruling upon the motion for nonsuit, even if erroneous at the time, was cured by the defendant’s evidence; and the instruction, even if defective as an abstract proposition of law, was harmless error. D. & R. G. Ry. Co. v. Henderson, 10 Colo. 1; Horn v. Reitler, 15 Colo. 316. 3. In general, an instruction which assumes the existence [14] of a fact controverted by the pleadings, or which ignores evidence tending to prove a material fact which, if established, would change the rights of the parties, is erroneous. But, where, at the trial, the existence of a fact controverted by the pleadings is practically conceded or established by clear and undisputed evidence, its existence may be assumed in the charge of the court without prejudice to the substantial rights of the parties, and such charge, though technically erroneous under the issues, will not be regarded as error requiring a reversal of judgment. 2 Thompson on Trials, sec. 2295; Venine v. Archibald, 3 Colo. 169; Dyer v. McPhee, 6 Colo. 174; City of Boulder v. Niles, 9 Colo. 415; Hughes v. Monty, 24 Iowa, 499; Caldwell v. Stephens, 57 Mo. 589; United States v. One Still, 5 Blatch. C. C. 403. The latter part of the foregoing rule applies to the following averments of the complaint in this case: (1) That plaintiff was a licensed saloon keeper, (2) that he was the head of a family with whom he resided in this state, (3) that he was the owner of the property which he claimed as exempt, and (4) that he was doing business under the name and style of George E. Miller. There was no evidence that any deception or fraud was intended by plaintiff in carrying on his business under such name. The proposition that plaintiff was not entitled to exemption for stock in trade to the full statutory amount, because he was possessed of a license having a monetary value, is untenable. The case of Yates v. Gransbury, 9 Colo. 323, does not support such a view of the law. 4. Under the proviso of the statute, each specific article of property is liable to levy and sale to satisfy the vendor for the purchase money for said article, even though the same be otherwise exempt. Gen. Stats., sec. 1866; Mills’ An. Stats., sec. 2562. It was practically so held in the case of Behymer v. Cook, 5 Colo. 395. It will be observed that the judgment under which the levy was made in the Behymer case was obtained for the purchase price of the specific property levied on, and that [15] the judgment was in favor of the very parties who had sold the property to Behymer; their action was brought for the purchase money. But in the case now under consideration the action was brought by the assignee of certain promissory notes; and, though the property levied on formed the original consideration for the notes, yet, the action by the assignee is distinguishable from an action for the purchase money of such property. As assignee, the appellant Weil, was a stranger to the original consideration of the notes. He enjoyed many advantages as such assignee; but his right of action was limited to the notes. He could not have an action for the purchase money as such, because he was never the owner of the property sold. In his hands the notes did not represent the purchase money of property which he had sold; he had never owned the property; the notes represented only what he had paid for them. When a vendor sues and recovers judgment for the purchase price of property which he has theretofore sold, the statute gives him the right to have execution against the property so sold while the same remains in the hands of his vendee, notwithstanding such property may be exempt from levy and sale for any other purpose. The proviso in the exemption statute is for the protection of the vendor who has parted with his property without getting his pay for it; it is a privilege personal to the vendor. If the vendor takes a promissory note for the property sold, and transfers the note to a third party, such voluntary transfer of the note does not carry with it to the assignee the right to resort to exempt property to satisfy a judgment which he as assignee may recover upon the note. Whether the heir or personal representative of a deceased vendor would succeed to the privilege of his decedent under the proviso of the exemption statute is not involved in this controversy. The privilege which the statute secures to the vendor would seem to bear a close analogy to the vendor’s lien for the purchase price of real estate. Shepard v. Cross, 33 Mich. 96; Baum v. Grigsby, 21 Cala. 173; Welborn v. Williams, 9 Ga. 86. [16] The remaining assignments of error need not be discussed. The record discloses no substantial error. The judgment of the district court must be affirmed. Affirmed.