Miles v. Edsall

Bach, J. This is action of claim and delivery. In his answer, the defendant, who was sheriff of Gallatin County, admits taking the property, and justifies the taking by asserting that one Mary C. Murphy was the owner and in possession of the property, and that he took the same under and by virtue of certain writs of attachment and execution, issued in actions wherein Charles A. Baker was plaintiff, and the said Mary Murphy was defendant. The pleadings in the case consist of the complaint, the answer, and the replication. Defendant made a motion for judgment on the pleadings, upon the ground that the replication did not specifically deny the new matter set out in the answer. The motion was denied, and properly so. The denials contained in [193] the replication are as specific as are the allegations which they meet, and each denial controverts the substance and spirit of the allegation in the answer. Upon the trial of the cause, the plaintiff introduced evidence tending to prove that he bought the cattle which are the subject of the action; that after his purchase he leased the same to Mary C. Murphy at a certain rent, with the understanding that she could purchase the same at any time during the hiring, at a certain price, by paying to him the difference between the said price and the rent theretofore paid by her; that prior to the commencement of the action, the lease had expired, and the purchase price had not been paid or tendered; also that the agreement was that the title should remain in the plaintiff until the purchase price was paid. On the other hand, the defendant sought to prove that the sale to Miles was really a sale to the said Mary Murphy, and that the lease between the plaintiff and Mary Murphy was executed in order to conceal her-ownership and defraud her creditors. There is a conflict of testimony upon the facts, and this court will not disturb the verdict upon the ground that it is contrary to the evidence. Taking the facts as proved by the plaintiff, they do not constitute fraud in law. In Heryford v. Davis, 102 U. S. 235, the court say that a lease with the privilege of purchasing might be a valid contract as a lease with conditional sale; although, upon the facts in that case, the contract was held void as against creditors, because it appeared from the evidence in the case that the lease was in fact a mortgage given by the vendee to secure the purchase price. In Harkness v. Russell, 118 U. S. 663, Mr. Justice Bradley, commenting upon the last cited case, says (page 680): “It was agreed by the court, in the opinion delivered by Mr. Justice Strong, that if the agreement had really amounted to a lease, with an agreement for condi [194] tioual sale, the claims of the vendors would have been valid.” In the case of Heryford v. Davis, the vendees gave their notes for the entire purchase price; there was no rent reserved by the so-called lease; and it was provided that if the notes were not paid, any sum collected thereon should belong to the vendor, who might retake the property, sell the . same, and apply the proceeds to the payment of any amount due and unpaid upon the notes. It was held that the agreement was in fact a mortgage. The lease in this cáse contained no pro.visions not common to every lease of personal property, and the parol agreement for a conditional sale was valid, even as against creditors. See Harkness v. Russell, 118 U. S. 663; Heinbockle v. Zugbaum, 5 Mont. 344; Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288. Speaking of the agreement between himself and Mary 0. Murphy in regard to some of the cattle, the plaintiff testifies °as follows: “ Mr. Herron [plaintiff’s vendor] came to me, and said Mrs. Murphy said I was going to buy these cows, and 'lease them to her. He wanted to sell them to her and get the cash. 1 told him that I had made such an arrangement with Mrs. Murphy [referring to lease of the other cattle], but this time I hated to do it. I gave him the money. A man named Donovan made out the bill of sale. When I saw it I found it was made out to Mrs. Murphy. I told him that was not the agreement. Then I thought I could take her note for it. I said, ‘ Let it go, and when you come down with the calf we can change it.’ ” The evidence further shows that the bill of sale was accordingly made out directly to the plaintiff. There was no unconditional acceptance by the plaintiff as the agent of Mary Murphy; no such delivery as would enable her to demand the possession of the three cattle. The plaintiff testifies that he never asked her for the note; he says he determined [195] not to do so. The only final acceptance was by the plaintiff in person. In Middlesworth v. Sedgwick, 10 Cal. 393, cited by appellant, the transaction was solely between the vendor and vendee, and was complete; and it was accordingly held that the return of the bill of sale to the vendor was not a return of the title to him. The verdict in this case is to some extent irregular, but section 267 of the Code declares, “But failure to find all the facts mentioned in this section shall not invalidate the verdict.” The judgment and order denying the motion for a new trial are affirmed, with costs. Judgment affirmed. McConnell, C. J., and Galbraith, J., concur.