West v. O'Leary

The-opinion of the court was delivered by Garrison, J. This is an action of replevin. The plaintiff in replevin was Annie O’Leary. To make out her title to-certain race horses she testified that she purchased. them for $4,000 in cash and gave her promissory note for the balance. It further appeared that she received a bill of sale for the horses, and that they remained in the custody of the same person who had held them for the vendor, and that they were subsequently run in the vendor’s name. It further appeared that the $4,000 paid by the plaintiff belonged to her father,, and that she was at best but the bailee of the fund. A motion to nonsuit was made upon the ground that the cash paid^by the plaintiff was not her money, and that there was no assumption by her of the property. We think that this motion was properly refused. As between vendor and vendee the legal title would pass according to the intention of the parties. Upon the question of title whether the vendor came by the cash she-paid honestly or dishonestly is without significance. If she had stolen the money, she could, by its use, acquire legal title to property as against a vendor or his creditors. The remaining exceptions refer to the charge of the court. Rut one of these may be noticed. The trial court said in its [700] charge that if the vendor at the time of the sale was not insolvent, and had seen fit to present the plaintiff with these horses, or make her a gift of them, he had a right to do it. As an abstract proposition of law this statement cannot be justified. But in its connection with the trial in question it had no pertinence. The question of a gift was not raised by either side. No charge with respect to a gift was requested. The proposition was not germane to any issufe or to any testimony that was before the jury. The expression of the trial court had therefore no bearing upon the only question left to the jury, and cannot be deemed to have injured the defeated party. The questions that were in the case were left to the jury under proper instructions. The judgment is affirmed. For affirmance—The Chancellor, Chief Justice, Abbett, Depue, Dixon, Garrison, Lippincott, Reed, Yan Syckel, Bogert, Brown, Smith. 12. For reversal—None.