Cortland Wagon Co. v. Sharvy

Collins, J. This was an action in the nature of conversion; the defendant justifying a seizure of the property, consisting of carriages, wagons, and sleighs, under an execution held by him as sheriff, and issued upon a judgment against one Whipple. The court below directed a verdict against defendant for the market value of the property, and the appeal is from an order refusing a new trial. Upon the argument here, counsel, for the sake of convenience, grouped the articles in controversy, and we will adopt the same arrangement. 'Group A consisted of articles made by the plaintiff corporation; group B, of articles made by the firm of King-man, Sturdevant & Larrabee; and group C, of two phaetons and a road wagon purchased and placed in stock by Whipple, and included in a bill of sale from him to plaintiff. 1. The carriages and sleighs placed in group A, plaintiff claims, were consigned by it to Whipple, and that at all times he held the same as its agent, and in no other capacity, under a written contract executed by both parties, and which was produced upon the trial. That the articles mentioned in groups A and B were delivered to Whipple under the contract was not questioned, but defendant insists that upon its face the written contract shows the transaction to have been a conditional sale, within the purview of 1878 G. S. ch. 39, § 15, and hence as the instrument, or a true copy, was never filed, as required by section 16, it was absolutely void, as against Whipple’s creditors. This view cannot be sustained. There [219] was no reason, so far as appears from the ease, at the time of the-execution of the contract, for evading the statute, and making that a consignment which was really a sale; and in every particular the contract is one of agency, for the handling by Whipple of carriages and sleighs of the grades made by plaintiff. No transfer of the absolute or general property to Whipple for a price in money, or for any other consideration, was agreed upon, nor was there a contingent agreement for such a transfer. A consignment contract, containing the provisions found in this, is not within the contemplátion of the statute relied on. 2. No good reason can be advanced for saying that the plaintiff could not furnish to Whipple goods manufactured by another concern, and by an oral agreement with him bring the same under the conditions of the consignment contract previously made. This being so, the articles made by Kingman, Sturdevant & Larrabee must be treated as if delivered to Whipple under, and as if expressly mentioned in, the original agreement. 3. In regard to the phaetons and road wagons embraced in group C, the facts were that prior to January, 1891, Whipple had failed to account to the plaintiff for the proceeds of sales made by him under the contract. He had in stock, and for several months had been the owner of, these articles, which he proposed to plaintiff to turn out in satisfaction of its claim, in amount something above their value. An agent of the corporation, after examining the vehicles, accepted this proposition, taking a bill of sale of the same, with the intention and expectation of shipping, with other goods, to plaintiff’s house in Chicago. Upon loading the freight car with the other goods, it was found that no room remained; and thereupon Whipple receipted for these articles as having been received and to be held by him as plaintiff’s property, under the terms and conditions of the original consignment contract. Nothing was done to indicate a change of ownership, except to place upon each article a tag card bearing plaintiff’s corporative name; and in this condition they continued to remain in Whipple’s possession, in his carriage repository, until the morning of April 4th, when — and while the plaintiff’s agent was engaged in crating them for shipment — defendant sheriff seized them under [220] •a writ of attachment issued in an action against Whipple, in which the judgment before mentioned was afterwards rendered. From this statement it is apparent that the sale was not accompanied by immediate delivery, or followed by an actual and continued change ■of possession, of the chattels sold; and under the statute of frauds the sale on which plaintiff rests its title was presumptively fraudulent and void, as against Whipple’s creditors. It was therefore incumbent upon the plaintiff to make it appear on the trial that it was made in good faith, and without any intent to hinder, delay, or defraud the vendor’s creditors. At the trial, defendant, claiming that the sale was fraudulent and void as to Whipple’s creditors, was allowed to show, under plaintiff’s objections, that Whipple did not conduct his business as an agent, but as a principal; that, upon one side and on one window of the building he occupied, his name was printed, and the words “Carriage Repository” added thereto; and also that his name and these words were printed upon cards and letter heads used by him. The defendant, plaintiff again objecting, was further allowed to prove that Whipple had made certain statements in respect to the ownership of the goods in question after the bill of sale was made, and, particularly, that a day or two before the seizure he said to a prospective purchaser that the phaetons and the wagon, pointing them out, were his individual property, and that plaintiff had nothing to do with the same. These objections were followed by motions to strike out the answers to the questions; and, when ruling on the motions, the court stated that they might be renewed later in the trial. This was done when both parties had rested, and thereupon all of the testimony relative to the signs upon the side and the window of the building, and all that Whipple had said relative to his ownership of the vehicles, was withdrawn from the consideration of the jury. This was followed by a direction that a verdict be returned for plaintiff. There was no error in either of these rulings. The plaintiff had clearly, and beyond all doubt, removed the presumption of fraud arising out of the fact that there had been no change of possession; and it was the plain duty of the court, without regard to this testimony as to statements made by Whipple, to instruct the jury, as it did, in effect, that plaintiff had [221] completely met and overcome the statutory presumption of fraud and was entitled to a verdict. Although the question .of fraudulent-intent in cases arising under the provisions of the statute of frauds is by such statute made one of fact for a jury to détermine, the section in question (1878 G. S. ch. 41, § 20) has no application where-there is no conflict of testimony, and when, as a consequence, the jury could find but one way. If there be no controversy over the facts, the court has the same right to direct a verdict as in other-cases. See Fish v. McDonnell, 42 Minn. 519, (44 N. W. Rep. 535.) Were the rule otherwise, as counsel for appellant seem to think, the verdict of a jury in cases arising under the statute of frauds would be conclusive. It is well settled that, where a vendor of chattels continues in possession of the same, his acts and declarations while thus in actual possession, tending to characterize the same, may be given in evidence. Murch v. Swensen, 40 Minn. 421, (42 N. W. Rep. 290.) Part of the testimony received by thé trial court under this rule— that in regard to Whipple’s signs, cards, and letter heads, and also-his statements as testified to by the witness Traphagen — was of very little consequence, one way or the other; but the statements said to-have been made to Peachey, which we have particularly detailed, were of more importance, and, with other evidence affecting the bona fides of plaintiff’s purchase, might have had a material bearing-in favor of the execution creditor, and against the plaintiff. Under-such circumstances rulings of the court excluding this class of testimony would have been erroneous; and undoubtedly it was upon this theory, in anticipation of such other evidence, that the learned, trial court acted when disposing of defendant’s objections. But on the uneontradicted evidence, as it stood at the close of the trial, and. with all of Whipple’s acts and declarations still in the case, there-could have been but one sustainable verdict;' and that in plaintiff’s favor. In other words, the acts and declarations which tended to-characterize the vendor’s possession, standing alone, as they did, in opposition to plaintiffs proofs, would not have warranted a finding in defendant’s favor. If the ruling striking out this testimony was-erroneous, it was without prejudice. [222] From the conclusion that plaintiff clearly established its right to all of the property, as the owner thereof, it follows that the true measure of damages was the value of the converted articles. Order affirmed.' (Opinion published 53 N. W. Rep. 11Í7.)