O'GARA v. Lowry.

Filed January 10, 1885.

SALE OF PERSONAL PROPERTY-CHANGE OF POSSESSION-IMMEDIATE DELIVERY.-In determining whether a sale of personal property is valid under the statute of frauds, as against creditors of the vendor, the jury should consider the facts connected with and surrounding the delivery of the property. But the fact that the property was sold on one day and not delivered until the next, does not render the sale void, if delivery was impossible on the day of sale; and it is properly a question for the jury to answer whether the property was so situated, and the parties were so located at the time of sale, that instant delivery could not be made, and whether it was made as soon thereafter as practicable.

THE SAME CONTINUED POSSESSION-EMPLOYMENT OF VENDOR.-The fact that the vendee of a horse and wagon employed the brother of the vendor to drive it, and, subsequently, for a short time employed the vendor, does not show such a want of continued possession in the vendee as to render the sale void.

APPEAL from the second judicial district court for Silver Bow county. The opinion states the facts.

Robinson & Stapleton for the appellant.
Randolph & De Witt, for the respondent.

COBURN, J. This is an action for claim and delivery of four horses, a wagon, a whip, two sets of harness and eight cords of wood. The plaintiff alleges that the defendant unlawfully took, on the thirteenth of September, 1882, this property from the possession of the plaintiff; that demand was made of defendant on the eighteenth of September, and a refusal on his part to deliver the same. The defendant justified as the sheriff of Silver Bow county, alleging that, at the time named, the property was owned and possessed by Charles R. Cutler; that Cutler was then indebted to Foster and Murphy in the sum of four hundred and sixteen dollars and twentyfour cents; that by virtue of a writ of attachment in their favor placed in his hands, he, as sheriff, on September 13th, 1882, seized and took into possession the property described in the complaint, except the eight cords of wood, which he denied taking; that afterwards and before the beginning of this suit, they obtained a judgment against said Cutler in said suit, on which an execution was issued, and the property, except said wood, was sold by him, as sheriff, to satisfy the same, and that he did not convert any wood whatever. The plaintiff replied that, being a resident of Silver Bow county, on or about the fourteenth of September, 1882, and after the levy of the said attachment, the plaintiff, under oath, claimed the property described in the complaint, served a written notice upon the defendant, and made a demand for the return of the property, under oath. And that this action was commenced after expiration of ten days therefrom. The plaintiff claimed to be the owner of the property attached, as a purchaser from Cutler on the twenty-first of July, 1882, and insisted that the delivery was as immediate as could be made, inasmuch as the same was in part horses, running on the range, some seven or ten miles from the place of sale; and that the other property was some seven or eight miles from Butte, at Cutler's residence, and near to the range where the horses were grazing; and that, hence, it was impracticable and impossible

for Cutler, the vendor, to make an instantaneous delivery of the property at the time of the sale in Butte, to the purchaser, the plaintiff. The cause was tried by a jury, and a verdict was returned for the plaintiff for the sum of five hundred and fifty dollars.

At the close of the plaintiff's testimony, the defendant moved the court for a nonsuit, for the following reasons:

1st. That Foster and Murphy, named in the pleadings, are shown by the pleadings to have been creditors of the said Cutler, the vendor of the property, at the time of the sale, and that it was proven by plaintiff that the sale from Cutler to him was made on July 21st, 1882, between eleven o'clock in the forenoon and two o'clock in the afternoon, and a delivery of possession was not made till the twenty-second of the month, and, therefore, no immediate delivery of possession, sufficient to satisfy the statute of frauds in such case, and said pretended sale was, therefore, void as against said Foster and Murphy.

This motion, the court overruled, to which the defendant excepted, and this is assigned as the first error, by the appellant.

The second error assigned is: "That the court erred in refusing to give defendant's instruction number 3, which is as follows: The jury are instructed that if they find from the evidence that Cutler sold said property to O'Gara, on the twenty-first day of July, 1882, and did not deliver possession thereof until July 22d, 1882, then they will find there was no immediate delivery of possession of said property, and said sale is void as against Foster and Murphy, and the jury will find for the defendant And which said instruction defendant asked the court to give, and which was refused, and said refusal was error, for the reason that the evidence shows that the pretended sale was made on the twenty-first day of July, 1882, and no delivery of the property was effected till July 22d, and no such immediate delivery of possession as would take the case out of the statute of frauds, and the sale was void, as to Foster and Murphy, who are shown to have been creditors of Cutler, the vendor, at the time. That said instruction was correct, and should have been given."

The third error assigned is: "That the evidence was insufficient to justify the verdict, in this: The evidence shows that there was no continuity of possession by plaintiff after the sale and pretended delivery of possession; that it shows that on the twenty-second of July, 1882, when plaintiff claims to have taken possession, and used the team that day, he then employed David Cutler to drive, and who continued to drive the team thereafter; and said David Cutler had been driving it after the twenty-second, and that Charles Cutler, the vendor, after the twenty-second, drove the team for a week or more; and the evidence shows no continuity of possession by plaintiff, and the sale for such reasons was void as to Foster and Murphy, who are shown to have been creditors of Charles Cutler, the vendor."

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The fourth error assigned is: "That the verdict was contrary to law, for the same reason as shown in the third assignment of errors." Thus it will be seen that the question arising out of the time and circumstances of the delivery of the property, is the main one in this case. In other words, was there a legal delivery of the property by Cutler to O'Gara, on the day after the sale, rendering the levy of the attachment of the creditors, Foster and Murphy, void.

The statute of frauds provides, that every sale of goods and chattels, unless the same be accompanied by the immediate delivery, and followed by an actual and continued change of possession of the thing sold, shall be conclusive evidence of fraud as against the creditors of the vendor, as subsequent purchasers in good faith.

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The appellant takes the position that the phrase, immediate delivery and change of possession," means the instantaneous delivery and change; that the sale, delivery and change must be simultaneous acts, allowing no lapse of time to intervene between the sale and the delivery and change of possession. And upon this theory the third instruction, which was refused, is by him held to be correct, while the appellee insists that the immediate delivery and change are such a delivery and change as the circumstances permitted, taking into consideration the nature of the property, its situation at the time of the sale, the position or location of the parties at that time, their distance from the property sold, and the acts necessary to be done to complete the collection of the property, the traveling to it, and placing it in a position to be put in the possession of the vendee. What might be regarded as an immediate delivery of one kind of property, might not be regarded as an immediate delivery of another kind. Small articles in the possession of the vendor at the place of sale are capable of instantaneous delivery, while large articles, at a distance from the place of sale, necessarily will not admit of instant delivery. This has been well stated in Lay v. Neville, 25 Cal., 553: "It is not intended by the 15th section of the statute of frauds to make a sale void, as against the creditors and purchasers of the vendor, unless the vendee shall perform in every case what might, in some cases, be an impossibility. It was intended that the vendee should immediately take, and continuously hold the possession of the goods purchased, in the manner, and accompanied by such plain acts of possession, control and ownership, as a prudent, bona fide purchaser would do, in the exercise of his rights over the property, so that all persons might have notice that he owned and had possession of the property. The acts that will constitute a delivery will vary in the different classes of cases, and will depend very much upon the character and quantity of the property sold, as well as the circumstances of each particular case. The same acts are not necessary to make a good delivery of a ponderous article, like a block of granite or a stack of hay, as would be required in an article of small bulk, as a parcel of bullion." The same point is illustrated in Chaffin v. Doub, 14 Cal., 381. The property mortgaged consisted of hay lying in swaths, winrows and stacks over

three large fields of the mortgagor, and the possession of it had been given by constructive delivery to the mortgagees, who, from thence, continued to work on the hay during eight days, when it was attached for the vendor's debts. The court held, that "if an actual and immediate delivery were construed to mean a removal immediately from the premises, the requirement of the statute would, in such cases, be impossible of performance, and that time was necessarily required to gather and remove the hay." The court below, in this case, gave the following instruction to the jury on this point: "In determining what, under the law, is an immediate delivery of the property sold, you are to consider the surrounding circumstances, the nature of the property to be delivered, its situation and the difficulty or ease of making delivery, and whether the delivery was made in the ordinary way that men of prudence and business would make delivery, if they were acting in good faith, and with the desire and intention to carry out their contract of sale according to law." And the court further instructed the jury, that "if you determine from the evidence that when Cutler sold to O'Gara there was an immediate delivery of the property mentioned in the complaint, from Cutler to O'Gara, and an actual and continued change of possession, you must find for the plaintiff."

We are of opinion that these instructions are correct, and that it was proper for the jury to consider the facts connected with and surrounding the delivery of the property to determine whether the same was valid and made in compliance with the statute of frauds. The fact that the property was sold one day to the plaintiff, and not delivered until the next day, does not render the sale void, if it appears in evidence that the delivery was impossible on the day of sale, and it is properly a question for the jury to answer whether the property was so situated and the parties were so located at the time of the making of the sale that instant delivery could not be made, and whether it was made as soon thereafter as practicable. And the same may be said as to the fact of the continued change of possession. All the transactions of business in the completion of sales by delivery cannot be completed in a moment or in an hour. The more important ones require time, and are accompanied, like all other human affairs, with delays, and are obstructed by necessary or unexpected obstacles. And these must all be considered before the sale is declared fraudulent and void. A reasonable time, consistent with all the circumstances and possibilities of delivery, unaccompanied by any avoidable delays, is given for an immediate delivery. It appears in evidence in this case that the sale was made in the city of Butte on the twenty-first of July, between ten o'clock A. M. and two o'clock P. M.; that the property was from seven to ten miles out in the country; the wagon, harness, etc., at the house of Cutler, the vendor, about seven or eight miles from Butte, and the horses were on the range, over which they grazed, at distances from two to three hundred yards to three or four miles from the house of Cutler. That after the sale was made the plaintiff and

Cutler went from Butte on the afternoon of the twenty-first of July, and arrived at his house about six o'clock in the evening. That the property was not delivered then. That next morning, the twentysecond of July, at six o'clock, Cutler went out and brought in the horses at eight o'clock in the forenoon, from the range, and then the property was all delivered to the plaintiff, O'Gara, who then took possession of it. The horses were harnessed and driven away with the wagon and other property, except the wood, to Bull Run, two miles away. The wood was hauled away subsequently. The plaintiff testified further, that the team was driven by David Cutler, the brother of the vendor, Charles Cutler, both prior and subsequent to the sale. He continued to drive it in the employ of O'Gara, the plaintiff, for several weeks after the sale. That his brother, Charles Cutler, the vendor, drove the team one week in August, after the sale, being employed by the plaintiff. These facts are relied on by the respondent, as showing that there was no continuity of possession in the plaintiff. The fact that the brother of the vendor drove the team, both before and after the sale, cannot be regarded as conclusive evidence against the continuity of possession in the purchaser, and was properly not so regarded by the court below. The jury had a right to consider the employment of the vendor's brother as a teamster by the purchaser as an act done in good faith. The mere facts of his relationship and former employment were circumstances which could have little weight in determining the good or bad faith of the transaction of sale. The fact of the vendor driving the team one week in August after the sale, is not conclusive evidence of fraud, and does not break the continuity of possession in the purchaser. The question for the jury was, had there been an actual and continued change of possession; and in settling this, it was proper for them to consider these facts as to driving, control and management of the team, taken with all the other facts connected with the sale, appearing in the evidence.

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The case of Stevens v. Irwin, 15 Cal., 507, illustrates this point. The court say: "The word 'actual' was designed to exclude the idea of a mere formal change of possession, and the word 'continued' to exclude the idea of a mere temporary change. But it never was the design of the statute to give such extension of meaning to this phrase; continued change of possession' as to require, upon penalty of a forfeiture of the goods, that the vendor should never have any control over, or use of them. This construction, if made without exception, would lead to very unjust and very absurd results. A vendor could never become trustee of the goods without their being forfeited or liable for his debts. If a livery stable keeper hired a horse to the original vendor, it would be liable for his debts; or if a boarder came into a room, the furniture might be liable for his debts, if he once owned it. The continued change of possession,' then, does not mean a continuance for all time, of the possession, or a perpetual exclusion of all use or control of the property by the original owner."