Aber v. Twichell
| Decision Date | 02 April 1908 |
| Citation | 116 N.W. 95,17 N.D. 229 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by Mollie L. Aber against T. Twichell, sheriff. Judgment for plaintiff, and defendant appeals.
Affirmed.
Turner & Wright, for appellant.
Bill of sale to have effect must be delivered. Rev. Codes 1905 section 4957; McMain v. Comonow, 10 N.D. 340, 87 N.W. 8; Triber v. Beckwith, 30 Wis. 55, 11 Am. Rep 546; Munroe v. Bowles, 54 L. R. A. 865.
The object of section 6951, Rev. Codes 1905, is the protection of the sheriff. Bradley v. Miller, 69 N.W. 426; Edson v. Newell, 14 Minn. 228 (Gil. 167); Barry v McGrade, 14 Min. 163.
Under an allegation of performance of a condition, evidence of waiver is inadmissible. Murray v. Thiessen, 87 N.W. 672; Taylor v. Seymour, 6 Cal. 512.
Barnett & Richardson and J. W. Tilly, for respondent.
Section 6951, Rev. Codes 1905, is to enable the sheriff to procure statutory indemnity. Granning v. Swenson, 52 N.W. 30; Wood v. Matter, 92 N.W. 523.
If the notice enables the sheriff to procure indemnity, it is sufficient. Ledley v. Hays, 1 Cal. 160; Boulware v. Craddock, 30 Cal. 190; Wellman v. English, 38 Cal. 583; Kellogg v. Burr. 58 P. 306.
Intent of the grantor to divest himself of title is the test of delivery. 9 Am. & Eng. Enc. Law (2d Ed.) 154.
A properly executed instrument in possession of grantee is proof of delivery. 9 Enc. Law (2d Ed.) 1591.
Intent of parties to a sale and delivery is determined by their acts and surrounding circumstances. Gibbons v. Robinson, 29 N.W. 533; Ramsey & Gore Mfg. Co. v. Kelsea, 22 L. R. A. 415; Welch v. Spies, 72 N.W. 548; Chezum v. Parker, 54 P. 22.
The defendant, as sheriff, levied writs of attachment upon property claimed by the plaintiff as owner. The writs were levied in actions brought by the Bristol & Sweet Company and the Dowaigac Manufacturing Company against plaintiff's husband on an indebtedness due from him to said parties. This action is brought to recover damages by reason of the taking of what is claimed to be her property. A jury was impaneled, and at the close of the testimony, the trial court directed a verdict for the plaintiff on all questions, except as to the value of the property taken by each of such creditors. The defendant has appealed from the judgment entered in plaintiff's favor on the verdict.
The facts developed at the trial are substantially the following: The plaintiff claims to be the owner of the attached property by virtue of a bill of sale from her husband. He had been engaged in the harness and saddlery business in Fargo for several years prior to making said bill of sale to the plaintiff. On about August 15 or 16, 1904, the husband disappeared from Fargo, and had not returned when the trial was had. Just immediately prior to his disappearance he executed a bill of sale of his stock of goods to the plaintiff, and said bill of sale was delivered to her on the morning of August 16th by one Pearson, who had been an employe in the store. Neither Aber nor Pearson was a witness at the trial. The plaintiff had no knowledge of the execution of the bill of sale until it was delivered to her. The husband was indebted to the plaintiff in the sum of about $ 1,500, money loaned by her to him to be used in the business. No fixed time was agreed on between them when it was to be paid back. She says it was to be repaid when the business would warrant or justify it. The consideration named in the bill of sale is $ 1,500. No understanding existed between her and Aber that she was to have a bill of sale executed to her, nor had she and her husband had any conversation on that subject. On the morning following Aber's disappearance, Pearson called at his home and informed Mrs. Aber that her husband had left town, and asked her to come to the store. She immediately went to the store, and, upon her arrival, Pearson handed her a sealed envelope, addressed to her, and in this envelope was the bill of sale. The envelope was in the safe just before Pearson handed it to the plaintiff. There is no direct evidence when the bill of sale was placed in the safe nor by whom, nor whether Pearson had ever seen or had it in his hands or custody before. The bill of sale was dated on August 15th. There is no direct evidence as to how the bill of sale came into Pearson's hands.
The defendant claims that the judgment should be reversed upon the following grounds: (1) That no delivery of the bill of sale to this plaintiff by the grantor therein is shown. (2) That the notice prescribed by section 6951, Rev. Codes 1905, was not served. (3) That it was prejudicially erroneous to admit in evidence the indemnity bond given by the attachment creditors to the sheriff.
Upon the first question, it seems evidence that Pearson knew that the bill of sale was in the safe before plaintiff came to the store. From the circumstances under which he took it from the safe, it is a fair inference that he went to the safe for the purpose of handing the envelope to her, and that the finding of it in the safe at that time was not accidental. Appellant also claims that there is no proof that the bill of sale was delivered to Pearson for the purpose of delivery to this plaintiff. We think the circumstances warrant the conclusion that Aber delivered the bill of sale to Pearson, to be by him delivered to her. The evidence is undisputed that Aber was indebted to his wife, and that he executed the bill of sale just before his disappearance. Pearson knew that he had disappeared, and deemed it necessary that she should come to the store. Pearson had been the only person employed by Aber during the preceding months. He was the only person, so far as the record shows, who was aware of Aber's disappearance. From these admitted facts, we think the inference a reasonable one that Aber delivered the bill of sale to Pearson with instructions to deliver it to his wife. Delivery of an instrument may be inferred from acts and circumstances. If there was an intention to deliver and a delivery followed by taking possession under the instrument, the title passes. 9 Am. & Eng. Enc. Law, p. 154, and cases cited. When the attachment writs were delivered, plaintiff was in actual possession of the store, and had been conducting the business personally for about two weeks.
It was claimed on the oral argument that the question whether there was a delivery of the bill of sale should have been submitted to the jury, and that it was error for the court to take that question from the jury. Both parties moved for a directed verdict, and both motions were before the court when the court granted plaintiff's motion. Under prior adjudications of this court in parallel cases, both parties waived the right to have any question submitted to the jury after the making of such motions, and are conclusively deemed to have consented that all questions should be decided by the court. Appellant attacks these prior decisions as not based on any sound principle of law or procedure. In this case the ruling is not assigned as error, and the matter was in no way called to the attention of the trial court. For this reason we shall not review these prior decisions in this case.
It is further contended that the plaintiff cannot in any event recover in this case, for the reason of failure to comply with the provisions of section 6951, Rev. Codes 1905, which reads as follows: "If any property levied upon by the sheriff by virtue of a warrant of attachment is claimed by any other person than the defendant and such person, his agent or attorney, makes affidavit of his title thereto or right to the possession thereof, stating the value thereof and the ground of such title or right, the sheriff may release such levy, unless the plaintiff on demand indemnifies the sheriff against such claim by an undertaking executed by a sufficient surety; and no claim to such property by any other person than the defendant shall be valid against the sheriff, unless so made; and notwithstanding such claim, when so made he may retain such property under levy a reasonable time to demand such indemnity." The notice was not verified. It stated the basis of plaintiff's title to the property and right to its possession to be that she is the owner and had the legal title and possession thereof when attached by the sheriff. It was served on the sheriff. The complaint stated generally the giving of the notice to the sheriff that the property...
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