Bassinger v. Spangler

• Decision Date: 26 April 1886
• Citation: 10 P. 809,9 Colo. 175
• Parties: BASSINGER v. SPANGLER.
• Court: Colorado Supreme Court

10 P. 809

9 Colo. 175

BASSINGER v. SPANGLER.

Supreme Court of Colorado

April 26, 1886

Error to district court, Arapahoe county.

James F. Welborn, prior to December 1, 1881, was the proprietor of the premises No. 323 California street, in the city of Denver, and with his wife occupied the same as his residence. He became indebted to the late E. P. Jacobson, and likewise to various other persons, and previous to December 1, 1881 conveyed these premises to Jacobson, but continued to reside thereon until April 1, 1882. Jacobson became surety for Welborn, March 16, 1880, upon the latter's note of that date, for the sum of $4,000, payable to J. S. Brown & Bro of Denver; and, after Jacobson's death, this note, being unpaid, was allowed as a claim against his estate, and ordered by the county court to be paid in due course of administration. The administrators, W. S. Decker and Annie W Jacobson, paid this claim, amounting to the sum of $4,430.60.

The present litigation, to a large extent, grew out of an attempt of said administrators to collect from Welborn the last-named claim, and the connection of plaintiff in error, Bassinger therewith, arose as follows: Bassinger, being the father of Mrs. Welborn, both he and wife became guests of the Welborn family about November 1, 1881, and thereafter continued to reside with the Welborns upon the premises aforesaid, until April 1, 1882. During this time another debt of Welborn's, which he had secured by a chattel mortgage upon his household goods and furniture, matured, and the goods were advertised to be sold on December 8, 1881, upon said mortgage. The day of the sale arrived, and quite a number of persons came to the house to attend the sale, but owing to the purchase of the property by Dr. Bassinger from Welborn prior to the hour advertised for such sale, and the payment of the chattel mortgage by Bassinger, the sale did not take place. The amount paid by the latter for the goods appears to have been the sum of $6,000. The goods purchased consisted of carpets, furniture, and other household effects. A bill of sale was executed by Welborn to Bassinger, and it was announced to the persons present that the property would not be exposed to sale upon the mortgage, for the reasons that it had been purchased by Dr. Bassinger, and that the indebtedness had been paid by him. A formal or constructive delivery was made of the goods by Welborn to Bassinger, in the presence of several persons, and Bassinger afterwards, on the same day, caused the bill of sale to be recorded in the office of the clerk and recorder of Arapahoe county. After Bassinger's purchase he and his wife continued to reside with the Welborn family as before, there being no visible change of the family relations, nor of the possession of the property purchased. Welborn's door-plate still remained on the door, but Bassinger did not indicate, by any outward sign, that the said house was his place of abode. He, however, testified upon the trial below, in which he was supported by the testimony of Welborn, that he had the absolute possession and control of the goods purchased by him, from and after the time of the transfer thereof to him as aforesaid. Subsequent to the purchase of the goods by Bassinger, Decker spoke to him about payment of rent for the premises, but he declined to pay rent, referring Decker to Welborn. Decker also advised with him at different times about the sale of the household furniture, stating, in substance, that he was desirious of disposing of the premises upon which Welborn and Bassinger were residing, and that it would be for the interests of both parties to sell the premises and the furniture and goods to the same purchaser, he having one in view, and asking Bassinger to put a price upon the goods. It appears that afterwards Bassinger was negotiating with one Sands with respect to the sale of the goods, and that Sands was at the same time negotiating with Decker for the purchase of the real estate; but before these negotiations were consummated the administrators of the Jacobson estate attached the goods and household furniture as the property of Welborn, in satisfaction of the judgment entered in the county court against the Jacobson estate. Bassinger replevied the goods as belonging to him, and upon the trial of the replevin suit, at the conclusion of the testimony, the court instructed the jury to return a verdict for the defendant, which was done, and judgment entered thereon; to reverse which judgment this writ of error is prosecuted.

Chas. H. Toll, for plaintiff in error.

Decker & Yonley, for defendant in error.

BECK C.J.

The question presented by this record for our decision is whether the transaction between James F. Welborn and Dr. Bassinger comes within the fourteenth section of the statute of frauds, and constitutes thereby a fraud in law. This section reads as follows:

'Every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void as against the creditors of the person making such assignment, or subsequent purchasers in good faith, and this presumption shall be conclusive.' Gen. St. § 1523.

In this case, as in many of like character, the good faith of the purchaser is not questioned, but the attaching creditors, who are represented by the defendant in error, rely upon the requirements of the statute that the sale must be followed by an actual and continued change of possession, and the failure of the purchaser to comply therewith.

The principal error assigned is the withdrawal fromt he jury of the questions of fact whether or not the evidence showed a sufficient delivery of the property sold, and whether the same was followed by an actual and continued change of possession. Had there been conflicting testimony on these points, and if the testimony on the part of the plaintiff had been sufficient in law to have sustained an affirmative verdict, the action of the court would have constituted error. But the evidence upon these points was almost, if not quite, that given by the witnesses of the plaintiff, Bassinger, and was not conflicting. It is only necessary for us, therefore, to consider its legal effect. The statute is plain, positive, and peremptory. It admits of no excuse for leaving personal chattels, capable of manual delivery and removal, in the apparent possession of the vendor; nor does it admit of a construction whereby there may be a joint or concurrent possession in both vendor and vendee; nor can a case be taken out of the statute, nor can the statute be satisfied, by proving that the sale was bona fide, and no fraud intended. Unless the purchaser can show such a substantial compliance with its terms as affords visible notice to the community of a change in the ownership of the goods, the transaction constitutes a fraud in law, and as such must be held to be void as to creditors and subsequent purchasers in good faith of the vendor.

Cook v. Mann, 6 Colo. 21, is cited by both parties in the controversy as a proper construction of this statute, both finding therein principles of law announced which they construe as supporting their respective theories as to the proper disposition of the points involved in the present controversy. They also find, as they suppose, analogous facts and circumstances, in respect to which they insist that the same rules of construction must be applied. The circumstances of that case respecting the change of possession, when carefully examined, will be found to differ widely from those appearing in the case at bar. That was the sale of a stock of goods, consisting of boots and shoes. The stock was in the store-room in which Haywood, the owner, was and had been pursuing his business as a merchant. The goods sold were not removed from this store-room at the time of the sale. Haywood did not quit the store-room upon the completion of the sale, but the provisions of the statute were satisfied nevertheless. An inventory of the goods was taken, and the price ($4,000) was paid. The purchaser, Mann, took immediate possession, not only of the goods, but of the store-room in which they were situated. He assumed the lease, hired his clerks, (one of them being Haywood, the former proprietor,) and changed the sign by placing his own sign, 'C. Y. Mann & Co.,' over the door. He then devoted his time and attention to the business, personally managing the same, at the same stand, replenishing the stock when necessary, and assuming exclusive control of the business. Chief Justice ELBERT, who delivered the opinion, says: 'All the indicia of ownership usual in mercantile business were present, and there was a complete change of the control and dominion of the property.' Now, it is obvious, from this statement of the case referred to, that so far as the immediate delivery of possession was concerned, and likewise with respect to the actual and continued change of possession, there was nothing colorable or uncertain. The possession was neither joint nor concurrent in the vendor and vendee, but visibly absolute in the vendee. No one could approach the store without witnessing the evidence of a change of ownership. The employment of the former proprietor in the capacity of a clerk was held to be unobjectionable, since a clerk is not vested with the possession of the merchant's goods. If the transaction was tainted with fraud at all, it was fraud in fact, and not fraud in law. But no fraud in fact was charged. The rules of law laid down as a proper construction of the statute were:

'The

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