Freiberg v. Steenbock

Collins, J. From an examination of the evidence in this action we are of the opinion that it warranted the findings of fact and conclusion of law. Nor did the court err, as claimed by appellants, when receiving in evidence the exhibits referred to in the assignments of error. Intervener’s title to the bonded warehouse certificates or receipts and to the whiskey in store, which they represented and called for, depended on various transactions, 'commencing with its agreement to make a loan of money to Boehm & Co., if the latter would assign and convey their interest in these certificates or receipts already pledged to and in the possession of J. 0. Oswald & Co., at Minneapolis, Minn., and including the execution and delivery of the bill of sale. It had been shown by the testimony that, as security for the loan of money made by the intervener to Boehm & Co., the latter had agreed to assign and [513] convey its interest in the pledged certificates or receipts, and to notify the pledgees to make a sight draft for the amount of their debt, to attach the certificates, and send these papers on for collection to the intervener bank at Denver, Colo. It was perfectly proper to show that the pledgees were so notified by Boehm & Co. The bill of sale, dated March 14th, but really executed and delivered a day or two later, is not open to the objection urged by appellants’ counsel. There is no uncertainty therein as to who was vendor or who was vendee. It is claimed that under the provisions of 1878 G. S. ch. 41, § 15, the transaction in question was presumptively fraudulent and void as against the creditors of Boehm & Co., because there was no immediate delivery of the certificates or of the whiskey mentioned therein, and no change of possession; and that the statutory presumption has not been rebutted, as it may be, by competent proof of good faith, and an absence of intent to hinder, delay, or defraud. The court found to the contrary, and that there had been an adequate delivery. We need npt consider the claim of respondent’s counsel that the statute had no application to the facts here, because neither whiskey nor certificates were in the possession or under the control of Boehm & Co. when assigned and conveyed to intervener bank, for the evidence justified the finding of the trial court. At the time of the transfer to the intervener bank, the whiskey itself was stored in a bonded warehouse, only to be removed on the surrender of the certificates and compliance with their conditions, and these certificates — in the hands of pledgees —were several hundred miles away. The bank had parted with its money, and had taken a bill of sale of the certificates and of the whiskey, subject to the pledgees’ claim. The latter were notified of the transfer, and, laying aside all that took place after the transfer and before the decease of Mr. Boehm, it is certain that before the garnishment the intervener had accepted the pledgees’ proposition to pay a draft at Minneapolis for the amount of their debt, the certificates being attached, and the draft and certificates were in a Minneapolis bank for that purpose. The law relating to the delivery of goods and chattels and a change of possession is flexible, accommodating itself to the nature of the property, the situation, and the circumstances of each case. Where the articles [514] at the time of the sale or transfer are in the hands of one who has a lien upon them, notice to him of such sale or transfer is sufficient to constitute a delivery, as against subsequent attaching creditors. Appleton v. Bancroft, 10 Met. (Mass.) 231; Dempsey v. Gardner, 127 Mass. 381, and cases cited. It was not in the power of Boehm & Co. to make manual delivery of the property. All was done that the nature of the case admitted, and proper exertions were used to make an early delivery of the certificates. Nothing more was required. (Opinion published 56 N. W. Rep. 175.) Order affirmed.