Kimball v. Post

Tatloe, J. The appellant insists that the contract between the plaintiff and Keyes comes within the provisions of sec. 1, ch. 113, Laws of 1873, and is void as against all persons except the parties thereto, because no copy was filed in the office of the city clerk. The view this court has taken of this case renders it unnecessary to decide whether such contract is within the provisions of said chapter; but we are strongly inclined to the opinion that this statute cannot be avoided by a mere declaration that what is in fact a conditional sale, shall be deemed to be a lease. Admitting, however, that this contract came within the provisions of said chapter, and was in fact a conditional sale and not a lease, we are of the opinion that the defendant did [476] not sbow bimself in a condition to take advantage of its provisions. It is urged that, as the statute declares the contract shall only be valid “ as to the parties thereto,” the vendor, by the delivery of the goods sold under the contract to the vendee, loses all right to claim the same against any party other than the vendee, without any regard to the manner in which such other party becomes possessed thereof; that it is immaterial whether the person found in possession after such delivery to the vendee acquires such possession by a purchase in good faith, or by a trespass upon the rights of such vendee; and that no action can be maintained by the original vendor against the party in possession, in either case. We are not inclined to give this law such an enlarged construction. The object of the statute is to protect those dealing with the possessor of personal property, against secret trusts or claims of those having no connection with the possession and no apparent connection with the title, and not to protect those making no claim thereto by purchase or assignment from the party in possession. In other words, it was not intended for the protection of mere trespassers. See Montgomery v. Dorion, 6 N. H., 255. Its proper construction must be, that, unless the contract be filed as required by the law, the title to the property mentioned in the contract is conclusively presumed tó be in the vendee in possession, in favor of the creditors of such vendee, as well as those claiming title thereto or any interest therein under him by purchase, assignment or otherwise. This is substantially the construction given to it by this court in the case of Williams v. Porter, 41 Wis., 422. It would defeat the whole object of the statute to hold that, if the vendor failed to so file his contract, the title should remain in him. Such construction would nullify the statute, and leave the parties in the same situation they would have been in if the statute had not been enacted, and would, per [477] haps, place the vendor in a more favorable situation as to the property. The statute virtually makes the conditional vendee the owner, with full power to transmit the title by sale, assignment or otherwise, as well as with power to encumber the same, unless the vendor shall file his contract as required, and, upon so filing the same, he retains his right to the property as expressed in the contract. The defendant gave no evidence tending to show that he became possessed of the property by purchase from, or that he claimed any interest therein derived from, the vendee or lessee, Keyes, 'so as to put himself in a position to claim that the ownership of the property was in Keyes. To authorize the defendant to set up that claim, it was necessary for him to connect himself with the title of Keyes. As' a mere trespasser found in possession of the property, he cannot avail himself of the benefit of this statute. Independently of the statute, and there being no question of the rights of a party purchasing in good faith of the party having the actual possession of the chattel, the plaintiff showed himself entitled to the possession of the piano at the commencement of the action, the vendee or lessee having made default in the payment of the purchase money or rent due by the terms of the contract; and the defendant, being found in possession after such default, and not being entitled to the protection of the statute, can have no greater right to retain the possession as against the plaintiff than Keyes would have had, had the possession remained in him. If the plaintiff’s evidence showed the possession of the defendant, and a demand and refusal to deliver the same to the plaintiff, after the first day of July and before the commencement of the action, then he made a case which entitled him to a verdict as directed by the court below. The evidence upon this subject was given by the witness Hurley. He swears: “ I took the number of the piano along, and told him (defendant) [478] I made a demand in behalf of Mr. Kimball for that piano taken from Keyes; the same number, the same piano. I think it was some time shortly after the transaction, before the commencement of this suit; and he refused to give it up.” The other evidence makes it sufficiently clear that this demand was made after the first of July. This demand, having called the attention of the defendant to a piano alleged to have been taken from Keyes, was a clear intimation on the part of the demandant charging the defendant with taking the same from Keyes; and his refusal to deliver the same, without any explanation or disclaimer of having the possession, or of having taken the same from Keyes, is an admission on his part that he had the piano and had taken the same from Keyes. We are of the opinion that if the defendant placed his refusal to deliver upon the ground that he did not then have, or that he never had, the possession of the piano, he should have so stated at the time; and, in the absence of any testimony given on the trial disproving his possession, his silence upon the subject when charged with the possession was an admission thereof, and sufficient evidence to sustain the plaintiff’s action. We have examined the authorities cited by the appellant to the point that a demand of possession and refusal to deliver the same is not sufficient evidence of a. conversion to sustain an action therefor, and do not think they conflict with our ruling in this case. In all the cases cited, the evidence given on the trial showed the fact that the goods were not in the possession of the defendant when they were demanded, or it was fairly to be inferred from the evidence that they were not. It is true, the defendant alleges in his answer that he purchased the piano of Keyes, and that he owned the same; but he gave no proof of the truth of his answer. As the plaintiff gave sufficient evidence to establish his right to the property, and the fact of the conversion of the same by the defendant, without relying upon the admissions made by him in his answer, there is no proof of ownership by the defendant, or [479] admission on tbe part of tbe plaintiff that be purchased of Keyes. By the Qowrt. — Tbe judgment of tbe circuit court is affirmed.