Goodkind v. Gilliam

Pemberton, C. J. The validity of the conditional sale by plaintiff to Loeb is not attacked by the defendant. The instructions of the court proceed upon the theory that the contract of sale of the property by plaintiff to Loeb was valid, and that plaintiff’s rights were amply protected and preserved by such arrangement. The validity and regularity of the chattel mortgage from Loeb to plaintiff are not disputed. It seems from the course of the examination of the witnesses by counsel for defendant that the contení ion of tfie defense was that the plaintiff, having accepted the chattel mortgage from Loeb, was estopped from asserting his own title in the case. But, if he did admit Loeb’s title by accepting the mortgage, he got rid of it by foreclosure. These foreclosure proceedings are not attacked. Under these proceedings, plaintiff got the possession of the goods. Afterwards he turned them over, under the original agreement with Loeb that he was to have title when he paid for the property. It nowhere appears that Maxfield was ever misled, or gave credit to Loeb on the belief that he was the owner of the property. [388] The records of Loeb’s title showed that his title had been foreclosed. So that, instead of the records showing title in Loeb, they showed the contrary. There is no ground for invoking the doctrine of estoppel in this^ case. For some reason the court, after charging the jury very fairly as to the law of the case, gave this instruction: “Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by the immediate deliv-. ery, and be followed by an actual and continued change of possession, of the thing sold and assigned, shall be conclusive evidence of fraud, as against the creditors of the vendor, or the person making such assignment, or subsequent purchasers in good faith. ’ ’ There is no evidence in the case that would render the giving of this instruction proper. It seems that the giving of it was prejudicial to the plaintiff, for it was calculated to mislead the jury into the belief that the plaintiff had sold the -property to Loeb under such circumstances as to bring the sale within the statute cif frauds. ( Walsh v. Mueller, 18 Mont. 180, 40 Pac. 292, and cases cited; Thomp. Char. Jur. § 63.) We think the verdict is not sup-, ported by the evidence. The court erred in refusing a new trial, and in giving the instruction treated above.. For these reasons the judgment and order appealed from are reversed, and the cause remanded for new trial. Reversed and Remanded. Hunt and Buck,, JJ., concur.