Moseley & Bro. v. Shattuck

Day, J. i. vendor and sessfon'o?os property. I. The demurrer to the defendant’s answer was properly sustained. The only issuable fact which it avers is, that plaintiff placed the organ in possession of Beckwith,-and thus clothed him with the apparent ownership. But every one does this who lends an article to another; for possession of personal property is prima facie evidence of ownership. Yet the lender may always reclaim his property if the borrower should dispose of it by sale. It is true the answer further alleges that plaintiff carelessly, designedly and fraudulently allowed the organ to remain in Beckwith’s possession. But these are allegations; not of facts, but of inferences or conclusions. The facts should have been stated upon which these conclusions are based, or from which these inferences are drawn. II. The plaintiffs offered in evidence an instrument ill writing, dated Madison, Wisconsin, March 7th, 1872, and signed by D. C. Beckwith, as follows: “Deceived from Mosely & Bro. one organ, made by Pelónbet & Pelton, No. 15196, upon hire for the use thereof, to be carefully kept and preserved by me, and returned to said Moseley & Bro. unless I shall purchase the same, which I have the privilege of doing provided I first pay the sum of [542] $150, with interest at the rate of ten- per cent per annum, as follows: $12.50 on the 1st day of March, 1872, the balance to be divided in eleven equal payments, to be paid on the tenth day of each month. But if said sum is not paid in full, with interest, at the time and in the manner aforesaid, then any and all payments are to be treated as rent paid for the use of said organ, at the rate of ten dollars per month, and insurance thereon against all damages of any kind done thereto, and all expenses in and about the taking possession and care of the same, including the services of attorneys, agents and servants, so that the undersigned shall have a claim against the said Moseley & Bro. for any such sum, if.any, as the aforesaid payments actually made shall exceed the rent and expenses aforesaid. - “But nothing herein contained shall be construed as giving to me any title to said organ, or right to dispose of the same until said sum of $150 and 'interest aré fully paid. . I am not to remove said property from my present residence without ’the consent of said Moseley & Br’o, and in case of such removal or neglect to pay and purchase as aforesaid, they may take said property into their possession.” Upon this instrument were indorsed various payments, amounting in all to $139.50. The defendant objected to the admission of this instrument as evidenced upon the following grounds: ‘ “1. Of a variance between petition and contract; the contract does not support the petition, as the plaintiff claims absolute ownership and the contract shows only a limited and qualified interest. “ 2. That there is no averment in petition that said contract has not been fully complied with, and there is nothing in petition assigning any breach of said contract. “ 3. That the plaintiff has not set forth the contract or a copy of it in petition.. That defendant has had no opportunity to take issue on plaintiff’s -written contract, nor the breaches therein. Defendant has had no opportunity to deny under oath the signature of said contract. That the plaintiff cannot establish his title to this organ by the contract between [543] him and a third person; and further, that the contract is void as to defendant, a bona fide purchaser, without notice, the contract never having been recorded.” The court overruled the objection. Defendant excepted; and now assigns the ruling as error. 1. If it should be conceded, as appellant claims, that the contract shows in plaintiff only a limited and qualified interest, still the objection made to the introduction of the contract on that ground is not tenable. Section 2729 of the Code provides: “A party shall not be compelled to prove more than is necessary to entitle him to the relief asked, or for any lower degree included therein.” If plaintiffs did not own the organ absolutely, still, under the petition, they were entitled to the value of whatever interest they had in it. 2. The objection that there is no averment in the.petition showing a breach of the contract, is met by the consideration that the suit is not upon the contract, but for damages for the conversion of property, the contract being introduced merely as a means of proving plaintiff’s ownership. This suggestion also answers the first three assignments of objections contained under the third head. 3. It is objected that the plaintiffs cannot establish their title to this organ by the contract between them and a third person. It may be true that in most cases something more than a contract between plaintiffs and a third person might be necessary to establish title; yet in any case such contract might be admissible as tending to show such title. But in this case the defendants claim to have derived their title from this very third person with whom the contract was made. Surely it is proper to show what the respective interests of plaintiffs and this third person, to-wit: Beckwith, are. 2 _. con_ ditionai sale. ; 4. It is objected that this contract is void as to defendant, a bona fide purchaser without notice, because it has not been recorded. The contract establishes a conditional sa[e. Xt has been held by this court that under •such an agreement as the one above set out, the title does not pass to the vendee till the price is paid. Bailey v. Harris, [544] 8 Iowa, 331; Robinson v. Chapline, 9 Iowa, 91; Baker v. Hall, 15 Iowa, 277. 3____of statute. On the 18th'day-of April, 1872, and after this contract was made, Chapter 63, Laws 1872, was approved — Section 1922 the Code — which in substance provides that no conditional sale shall be valid against creditors or purchasers of the vendee, unless in writing and recorded. Appellant claims that this statute is retrospective. That it is not so 'was determined in Knowlton v. Redenbaugh, 40 Iowa, 114. All the objections of defendant to the introduction of this contract were properly overruled. The record discloses no error prejudicial to defendant. It may be that, under the testimony, the judgment should liave been for the value of the organ, but of this appellant should not complain. Affirmed.