Kinney v. First National Bank of Rock Springs

Corn, Justice (after stating the facts as above). There is no material disagreement as to the facts of this case, and, in our opinion, there is but one question involved: Was there a sale and delivery of the mortgaged property by the mortgagor to the mortgagee, such as would pass title to it as against an execution creditor of the mortgagor ? That there was a contract of sale by which the bank was to receive all the mortgaged sheep, supposed to be about 7,700, head, and give the mortgagor, Murray, credit upon his indebtedness at the agreed rate per head, there can be no question under the evidence. The parties undertook to perfect this sale by an actual delivery of the entire herd. Murray directed his foreman to drive the herd to the place designated for delivering them, and the bank sent Edwards to the same place with authority to receive them for it. At the same time Murray gave to the bank a written order upon his foreman, directing him to turn them over to Edwards, and the order was handed to Edwards by the bank. This paper was lost and the foreman and Gildersleeve, who obtained it for the [122] bank, differ in their testimony as to its wording. The foreman testifies “it said to turn what sheep I had in my possession over to John G. Edwards and to take a receipt for them.” Gildersleeve states that its language, as nearly ás he can remember, was: “Deliver to J. G. Edwards all my sheep, keeping track of number turned over, and report count to me.” But the precise terms of the order are not material, from the fact that at the time it was given all parties concerned supposed that substantially the entire herd, consisting of about 7,700, was in the possession, or under the control, of Murray’s foreman. Gildersleeve, the assistant cashier of defendant in error, testifies that Murray told him prior to the delivery that he thought some had strayed and he would probably find them in a few days. The evidence shows that it was a wild and uninhabited country there, and that it was not unusual for small bands to stray away from the herds. But that this large number had strayed was only discovered when they were counted out to Edwards. Even the foreman was ignorant of it, except as to eight or nine head which had gotten mixed with the Draper herd in driving them to the place of delivery. And it is clear from the evidence that both Murray and the bank expected that he would turn over and it would actually receive substantially the entire herd of about 7,700, on the 12th of March, at Bitter Creek. That the property passed as between the mortgagor and the mortgagee is, therefore, clearly proven, and the only question to be determined is whether there was a sufficient delivery with respect to third persons. The well established rule is that it is enough if the delivery be such as the situation of the property admits. And when chattels are so situated that there can -be no immediate delivery, the law requires none; and it is sufficient if the vendee without laches takes possession in a reasonable time after he has an opportunity to do so. (Benjamin on Sales (Bennett’s Ed.), 659; Ricker v. Cross, 5 N. H., 570; 14 Am. & E. Ency. (2nd Ed.), 382.) The rule is illustrated by the sale of a ship at sea or its cargo. If possession is taken within a rea [123] sonable time after their arrival it is sufficient. In Ricker v. Cross supra a debtor transferred to the plaintiffs certain personal property, including a chaise and harness, for their benefit as creditors. The chaise and harness were in possession, at a distance, of a person who had hired them, but the remainder was delivered in the name of the whole. An attachment was levied upon them while in the possession of the hirer on his way to the place where he hired them. It was held that the plaintiffs were entitled to hold them against the officer. We think the facts bring this case quite clearly within the rule. There was an attempt upon the part of Murray to deliver, and of the bank to receive, possession of all the property on the day appointed for the transfer. The small number which had become mixed with the Draper herd were reclaimed a few days afterwards. Gildersleeve testifies that he made inquiries at once in regard to the missing part of the herd, and on March 25th sent out two men, who searched for them about a .week, and the search was then discontinued, principally on account of stormy weather. When they were found and levied upon by plaintiff in error the bank notified plaintiff in error that they were its property and at the sale gave formal public notice of the fact and demanded possession of them.' ■ It is contended that the fact that the plaintiff only credited the mortgagor on March 12th with the number actually received at that time, is proof that it only purchased from him that number. But we think the evidence clearly shows that there was a sale of all the mortgaged property, the exact number of sheep to be ascertained by a count and credited accordingly. But Murray’s foreman testifies that when, upon a count of -the sheep, they were found to be short, he told Edwards there were some which had gotten mixed with the Draper band, and if he would send a man with him he would go and get them, but that Edwards refused. The defendant offered to prove further that Edwards’ reply was: “I only bought from Murray the sheep that I receive [124] here at Bitter Creek.” Upon objection by the plaintiff the proffered evidence was excluded. We think the evidence was not material, and that its exclusion was not error. The testimony for the plaintiff shows that the sale to Edwards was a separate transaction and there was no evidence to the contrary. He represented the bank in receiving the property for it, and there is no evidence whatever tending to show that he represented it in any matter connected with the sale of it to him. In regard to that he acted for himself. But it is further contended that, as admittedly, he acted as agent for the bank in receiving the property, his refusal to send for this part of it was a refusal of the bank to accept the delivery of any sheep not in the immediate possession of Murray’s foreman and shows that it purchased only those delivered at that time. But admitting that it- is competent for that purpose and tends to support that conclusion, yet it only affects the question of the preponderance of the evidence. And the proof is conclusive that a few days after-wards the hank sent for and gathered up the nine head which had strayed into the Draper herd and instituted search for the missing remainder. We do not think, therefore, that the claim of plaintiff in errbr, that the bank refused, or failed, to accept any part of the herd except what was in the immediate possession of the foreman, is sustained by the evidence. But we think the great preponderance is in favor of the conclusion that it took, or attempted to take, possession of the entire herd as soon as opportunity offered. There was also an offer by the defendant, plaintiff in error, to prove that Murray gave a mortgage upon the missing sheep to one Mrs. J. W. Roder, upon April 8th. 1897, subsequent to the sale; and it is contended that this evidence was admissible, especially under the averment in the petition and its denial in the answer that Murray had abandoned these sheep to the bank. The averment that Murray at the time of the delivery, and always afterwards, abandoned them to the bank seems to have been intended to meet the requirement of the law in such cases that the [125] change of possession must be not merely colorable, but actual and continued. But whatever may have been the precise intention of the pleader, we are very clearly of the opinion that this averment cannot have the effect to introduce a new issue into the case and make it a material question whether Murray at some time subsequent to the sale and delivery, undertook to assert ownership and control of the property. There is no intimation of fraud in the transaction between Murray and the bank, and there is no claim that the bank assented to, or had notice of, any attempt of Murray to exercise such control. Consequently, nothing that he may have said or done concerning the property after he parted with it could by any possibility bind the bank or affect its rights in any way. (Toms v. Whitmore, 6 Wyo., 220; 44 Pac., 57.) The evidence was properly excluded. We find no error in the record and the judgment will be affirmed. Affirmed. Potter, C. J., and KNight, J., concur.