Bunce v. Mc Mahon

Potter, Justice. Defendant in error, Me Mahon, brought this suit in the district court of Fremont County to recover the possession of specific personal property, the same consisting of certain sawmill machinery. A jury trial was had and a verdict rendered in which McMahon was found to be the owner of the property at the time of the commencement of the action and entitled to the immediate possession thereof. The property had been delivered to the plaintiff shortly after the suit was commenced upon his furnishing an undertaking as provided by statute. The defendant below, plaintiff in error here, filed and presented his motion for new trial, which was overruled, to which exception was duly reserved, and he prosecutes this proceeding, claiming error occurring upon the trial and asking a reversal of the judgment and a vacation of the verdict. Several errors are assigned, one of them being that the court erred in overruling the motion for new trial. As far as a discussion of the points urged are deemed material they will be considered as far as practicable in the order in which they are presented in the briefs. It is charged, in the first place, that the verdict is not sustained by sufficient evidence and is contrary to law; and it is urged that this charge is sustained by the fact that no demand for the possession of the property was made by Me Mahon before bringing the suit; and demand it is. claimed was necessary to entitle the plaintiff to recover for either of two reasons: 1, that where possession is obtained rightfully a demand is necessary before the institution of a replevin suit; and 2, that if plaintiff held title under one who was a vendor of a conditional sale, and — 32 — the defendant’s title was derived by purchase from the vendee of such sale, the condition of such sale being an agreement that the title should not pass from the vendor until full payment for the property, a demand was required to divest the right of the defendant to possession. The petition does not allege demand, but does allege .absolute ownership and right to immediate possession and wrongful detention thereof by defendant. The answer filed by defendant denied plaintiff’s ownership, and the wrongful detention by defendant; and by a second defense, separately stated, alleges that the defendant is the owner and entitled to the immediate possession of the property in controversy; that he was the owner and in.the rightful possession thereof, until deprived of such possession at the time of the commencement of this action. By way of cross petition he again sets up an allegation of ■ownership and right to possession, and asks for damages against the plaintiff and his sureties for the delivery of the property or its value, if the same can not be returned, and ■damages for wrongful detention by plaintiff; which wrongful detention, if any, it is apparent arose after the taking of the property under the order of delivery issued at the ■commencement of the action. Each of the parties litigant upon the trial insisted that he was the owner and that he was entitled to possession as incident to that ownership. In a case which the pleadings here present, a previous demand was unnecessary. The principle as stated by one author is : £ ‘ The rule ‘ ‘which requires demand is a technical one. The reason ‘ ‘of it is that the law presumes that the party in possession of property not his own, will respect the rights of ■* ‘the true owner when informed of them, and that upon “demand being made he will surrender without suit. ‘ ‘But where defendant pleads ownership in himself he can ■‘ ‘not defeat a recovery under the pretense that he would “have surrendered the property if demand had been “made.” Cobbey on Replevin, Sec. 448. See also :Secs. 447-450. This is well sustained by the authorities. — 33 — We perceive no distinction upon principle in the application of this rule, whether we consider either of the reasons urged in favor of the necessity of such previous demand. A demand, in any case, is only necessary when it is required to terminate the right of possession in the defendant, or to confer that right upon the plaintiff; when, therefore, defendant not only alleges but insists upon absolute ownership in himself and his right of possession is claimed as incident thereto, a demand would have been futile; and the law will not require a useless thing to be done in such a case. The property in controversy had at one time, it seems, been the property of a Mrs. Himmelsbaugh. She sold to one Wilson, as alleged, under an agreement that the title to the property should remain in her until paid for. Wilson had not paid any part of the purchase price. The plaintiff bought of the Himmelsbaughs, and Bunce had purchased from Wilson. The plaintiff, it seems, had also bought whatever right Wilson had at one time, it would seem after Wilson had sold to Bunce, but whether by that purchase he acquired any right or not is immaterial. That a sale of personal property, under an agreement that the title shall not vest in the vendee,- but shall remain in the vendor until full payment, is valid, and that the vendor in such case can recover the property in case of default even though it be in the hands of a third party, who takes it in good faith and without notice, has been settled in this state by the case of Warner v. Roth, 2 Wyo., 63. The doctrine there announced accords with the weight of authority and we think it is well sustained by sound reason. But, if not, it has become a rule of property in this State and should be followed. The facts in this case arose and trial was had prior to the enactment of the recent statute requiring conditional sales to be in writing and recorded in order to affect third parties without notice. Several instructions were given to the jury, some upon the request of plaintiff and others at the request of defendant. It is urged that several of the instructions which — 34 — were given were erroneous. Objection is made to the following instruction given at request of plaintiff: “ The court instructs the jury that if you believe, from “the evidence in this case, that Mrs. Himmelsbaugh sold “the property in question to Wilson, under an agreement “that it was to be paid for at some future time, the ownership and title to the property to remain in Mrs.. Him-“melsbaugh until the full payment of the purchase price, “then the full payment was a condition precedent, and “until a full performance, the property did not vest in “Wilson, and Bunce, his vendee, acquired no higher “rights than Wilson had, and you should so find, unless “you further believe that Mrs. Himmelsbaugh stood by “and wrongfully permitted a sale by Wilson to Bunce ‘ ‘without asserting her own title to the property or proceeding in any way against said sale.” This instruction is challenged on the ground that it excluded all idea of waiver of the condition by Mrs. Him-melsbaugh other than standing by and permitting the sale to Bunce without asserting her own title, and that no other instruction was given by the court touching the matter of waiver. Counsel, we think, are in error in this respect. At the request of defendant the following instruction was given: “In this case, although you may believe from the evidence that the Himmelsbaughs were the owners of the “property in question, and that the transaction occurring “between themselves and Wilson on Nov. 2, 1891, was “a conditional and not an absolute sale, and it was agreed “between them that the title should not^pass until Wilson “should make payment therefor, yet, if you further ‘ ‘believe from the evidence in this case that the Himmels-“baughs voluntarily and knowingly permitted Wilson to “have possession of the property and to exercise such acts “of ownership over it, and to so use, manage, and control the property as to authorize and justify an ordinarily “prudent man in supposing that Wilson was in fact the “owner of the said property; and if you further believe — 35 — “that the defendant in good faith approached the said “Himmelsbaughs, offering to buy of them a portion of “the said property, and was thereupon informed by the “said Himmelsbaughs, or either of them, that they had “sold all of said property to Wilson, and that they had no “claim thereon; and if you further believe from the evi- ‘ ‘dence that the defendant thereafter in good faith bought “the property in question from Wilson supposing and “believing that the said Wilson was the owner thereof, ‘ ‘then I charge yod, as a matter of law, that the Himmels- ‘ ‘baughs were thereafter estopped from setting up a claim ‘ ‘to said property as against the defendant, and could not “as against him convey a good title to said property by “means of the conveyance to him (plaintiff) by the Him-“melsbaughs or either of them.” Taking the two instructions together, the court fairly presented to the jury the question of estoppel or waiver, arising upon the testimony. If any further instruction with reference to waiver was.desired or deemed essential by the defendant it should have been requested. Exception was reserved to the following instruction given to the jury at the request of the plaintiff: “The court instructs the jury that if the jury believe “from the evidence that the witness, Azil T. Wilson, has “wilfully sworn falsely on this trial as to any matter or “thing material to the issues in this case, then the jury “are at liberty to disregard his entire testimony, except in “so far as it has been corroborated by other credible evidence or by facts and circumstances proved on the “trial.” This instruction is challenged on the ground that it is misleading and is error, and to support the theory that it is erroneous in itself some authorities' are cited to the effect that it is error to single out a particular witness in an instruction of this character. Thompson on Trials, Sec. 2423, to which our attention is called, seems to sustain this contention by a statement contained in the text, but that learned author cites in support thereof only two — 36 — cases; viz., State v. Stout, 31 Mo., 106, and State v. Cushing, 29 Mo., 215. These two cases, however, were not in accord with previous decisions in Missouri,-if they attempted to announce or hold the doctrine to sustain which they are cited — see State v. Mix, 15 Mo., 153; Gillett v. Wimer, 23 Mo., 77; State v. Dwier, 25 Mo., 553. In a later case than all of these, Paulette v. Brown, 40 Mo., 52, the decisions in State v. Mix, Gillett v. Wimer, and State v. Dwier are approved, and the authority of State v. Cushing, and State v. Stout, as establishing a contrary doctrine, is denied. The Missouri cases, therefore, by the construction' placed upon them by the supreme court of that State do not agree with the contention of counsel for plaintiff in error. On the other hand, the authorities are numerous which sustain and approve such an instruction as is here challenged. In some of the cases, it is true, the witness thus singled out is the defendant on trial in a criminal case, but no distinction is apparently made between reference to such a witness and any other. O’Rourke v. O’Rourke, 43 Mich., 58; Hitchcock v. Davis, 87 Mich., 629; Cole v. L. S., etc., R. R., 95 Mich., 77; Ammerman v. Teeter, 49 Ill., 400; Hirschman v. People, 101 Ill., 568; Rider v. People, 110 Ill., 11; Minich v. People, 8 Colo., 440; Rose v. Otis, 18 Colo., 59; Cornelius v. Hambay, 150 Pa. St., 359; Engmann v. Immel, 59 Wis., 249; Herstine v. Lehigh, etc., Co., 151 Pa. St., 244; State v. Sterrett, 71 la., 386; St. Louis v. State, 8 Neb., 405; People v. Pemecky, 99 N. Y., 415; People v. Conley, 102 N. Y., 234; State v. McLane, 15 Nev., 345; People v. Knapp, 71 Cal., 1. Our own court has taken a similar view: Haines v. Territory, 3 Wyo., 168; which case is cited with approval in Regan v. U. S., 157 U. S., 301. The witness Wilson was contradicted in relation to some matters testified to by him, by other witnesses, and the instruction was not misleading nor improper. Such a rule, of course, applies to all witnesses, and it would have been entirely proper and perhaps a better practise — 37 — for the court to have added that the same rule would apply to any other witness who has wilfully sworn falsely concerning any material matter in controversy; but the failure to do so does not render the instruction here complained of erroneous, where there is occasion to use it. It is also urged as a ground for reversal that the court erred in instructing the jury that it was not material whether McMahon at the time he purchased the property from Wilson did or did not know that Wilson had already sold or attempted to sell it to Bunco. The court did not err in giving that instruction: McMahon claimed title from Mrs. Himmelsbaugh and it was clearly immaterial whether he knew that Bunce had made an attempted purchase from Wilson or not. Counsel for plaintiff in error also contends that the court erred in the giving of other instructions, which it is urged were erroneous because they assumed the existence of certain facts as proved and were therefore misleading. We have carefully examined the instructions thus complained of, and without quoting them here, it will be sufficient to observe that we can not agree with the position taken by counsel. The court assumed nothing as having been proved. At the request of the defendant an instruction was given which plainly left to the jury the question of the weight of the evidence and the credibility of the witnesses: and they were instructed that they were the sole and exclusive judges thereof. There was much conflict of testimony; and in view of the law applicable to the case, we think the jury arrived at a correct conclusion. The material point of conflict was whether or not the sale to Wilson was a conditional one. There was ample evidence to sustain the contention of plaintiff below that it was conditional. The jury so found, and, in our opinion, there is no such infirmity, if any, in the instructions, taken as a whole, as demands a vacation of the verdict. During the argument to the jury one of the attorneys — 38 — for the plaintiff referred to a contract which had been offered in evidence by the defendant and excluded because the entire contract was not offered. We understand from the record that it was the bill of sale from Wilson to Bunce, with which was connected some kind of contract, which however, was not in evidence. Complaint is made of the language thus used in argument, such language being as follows: “The bill of sale from Wilson to Bunce “had connected with it a contract of such a vicious and “damaging character, the defendant was afraid to put it ‘■‘in evidence;” and then adding, “a contract must be very bad when Bunce is ashamed to show it, and his counsel (naming him) is afraid to put it in evidence.” Counsel was interrupted by the defendant’s counsel and the court was asked to exclude such statement from the jury, and the request was overruled. The language complained of was not so much a statement of the contract or what it was or its contents, as an attack upon the motives of the defense in failing or refusing to introduce it in evidence. Bunce claimed under a sale from Wilson which it appears was evidenced by a written bill of sale. Under this, and this alone, the defendant deraigned whatever positive title he had to the property in controversy. The bill of sale which had been identified mentioned that the consideration of the sale was '$950. “And other considerations “mentioned in a certain written agreement signed by the “said A. T. Wilson and bearing even date herewith.” The contract thus referred to was not offered, and the offer to introduce the bill of sale was therefore denied. This, of course, all occurred in the presence of the jury. Just how far an attorney may go in argument is not always an easy question to determine. Certain rules are, however, well established. Had the contract, in fact, contained anything which would have been prejudicial to the defendant, and the attorney had stated in argument such prejudicial contents, without any attempt of the court to correct him, upon objection being made, thus bringing to the jury in an improper manner facts not in — 39 — evidence, and damaging to the defense upon the issues in the case, the action of the court could hardly have been sustained by an appellate court. The whole language, however,, which is before us, is, we think susceptible of one construction only, and that is, that it attempted to reflect upon the opposing party because of an omission to introduce in evidence the very paper under which he claimed title. If the remarks of counsel objected to are confined to this, and the language used does not transcend professional propriety to such an extent as to injuriously affect the result, it is not ground for reversal; Chambers v. Greenwood, 68 N. C., 274; Learned v. Hall, 133 Mass., 417; Gavigan v. Scott, 51 Mich., 373; Gray v. Burk, 19 Tex., 229. Of necessity, in a matter of this kind, much- must be left to the judgment and discretion of the trial court. As was said in the opinion in Chambers v. Greenwood, supra, “The mere manner of conducting the trial below is, and ‘ ‘ought to be, so much within the discretion of the trial “judge that an alleged irregularity must be palpable, and '“the consequences impoi’tant to induce us to interfere.” The trial judge can better determine whether in any given case an undue prejudice has been actually produced by the language of counsel, if it goes beyond that which is legitimate. State v. Zunbunson, 7 Mo. App., 526 (86 Mo., 111). The attention of the jury might have been directed to the failure, of the defense, to introduce the bill of sale in evidence and counsel could have commented thereon without employing language calculated to cast personal appro-brium upon parties or counsel; but every departure from strict propriety during the heat of argument can not require the vacation of a verdict by an appellate court, unless indeed it is entirely clear that it is not only illegitimate, but has been prejudicial. Taking the language objected to altogether, however, we are of the opinion, as already indicated, that it was only intended to assail the party defendant for refusing to introduce the paper and to draw legitimate conclusions therefrom, and that such only was — 40 — its effect. In view of these considerations, and inasmuch as the jury reached a conclusion consistent with the facts, we think no error was committed in respect to this assignment. But it is contended that the judgment should be reversed because of misconduct on the part of the jury, to prove which misconduct the affidavits of four of the jurors were attached to and filed with the motion for new trial. The misconduct charged consists in the fact, as alleged, that after the jury had retired to consider the ease, one of them visited the court room and returned to the jury room having in his possession the paper writing which had been introduced in evidence, and had in the trial been severally examined by the jurors, which was the paper claimed by the defense to have been signed by Joseph Himmelsbaugh and delivered to Wilson, under which it was claimed upon the trial that the sale to Wilson was absolute and not a conditional one. Upon the trial considerable testimony was heard respecting this writing, and whether certain parts thereof were contained therein when signed and delivered, or had been written in afterward, including some testimony of expert witnesses in handwriting. The words upon which much issue was raised were “as I sold to him,” which appeared at the end of the writing and before the signature, the remainder of the writing purporting to be an order to allow Wilson to take the property in controversy. Himmelsbaugh denied that the name signed to the instrument was his. The jurors had all inspected this writing during the trial; at least that is the claim, as appears by the affidavits of the jurors. The affidavits referred to, after showing that this paper came into the jury room in the manner above described, state that it was then again examined, re-examined, and commented upon and argued about by the several members of the jury while deliberating upon their verdict, and before they had agreed upon their verdict, and was the main topic of discussion and consideration while so considering their verdict. It is apparent from an inspection of the record and a considera — 41 — tion of the theories upon which the case was tried, that much importance was attached to the contents of said paper, and whether, in its then condition, it was genuine, or had been altered. It was the only evidence, other than the testimony of Wilson, upon which the defense-based its position that the sale to Wilson was unconditional. It must, therefore, have been one of the main topics of discussion in the jury room, whether it was-present there or not. The affidavits do not state directly or indirectly that by reason of such re-examination a verdict was arrived at different from that which would have been reached otherwise, neither is it stated that the bringing of such paper into the jury room induced their verdict. It is not clear that the court might not have the, right to-permit the jury to take the paper thus introduced in evidence with them upon their retirement, but we refrain from in any way deciding that question, as this matter must be disposed of upon other considerations. First, the affidavits of the jurors can not be received to impeach their verdict, and we are unable to distinguish this case from others, where that rule has been established or adhered to. The general doctrine is one which is too well established to require any elucidation or citation of authorities. Secondly, the affidavits, even if they were to be considered, fall far short of showing that any prejudice or injury resulted therefrom. Several assignments of error present exceptions to the admission of testimony. A recital hereof each question objected to, and a separate discussion of the points thus severally involved, and the reasons governing our conclusion, will subserve no useful purpose. We-therefore content ourselves with the remark, that we do not think the objections urged present any ground for' disturbing the verdict. The judgment is affirmed. Gboesbeck, C. J., and Conaway, J., concur.