Brown v. Feeler

• Citation: 35 Idaho 57,204 P. 659
• Parties: R. E. BROWN and H. O. BROWN, Copartners, Doing Business Under the Style and Firm Name of BROWN BROTHERS SHEEP COMPANY, Appellants, v. SAMUEL FEELER, Respondent
• Decision Date: 11 February 1922
• Court: United States State Supreme Court of Idaho

204 P. 659

35 Idaho 57

R. E. BROWN and H. O. BROWN, Copartners, Doing Business Under the Style and Firm Name of BROWN BROTHERS SHEEP COMPANY, Appellants, v. SAMUEL FEELER, Respondent

Supreme Court of Idaho

February 11, 1922

CONTRACT TO SELL - PERSONAL PROPERTY - CHANGE OF POSSESSION - EVIDENCE-INSTRUCTIONS.

1. Held, that the evidence in this case shows without conflict that the transaction between appellants and Abbl was an executory contract to sell; that the latter at all times retained possession of the sheep involved in this action until he sold and delivered the same to respondent, and that there is no evidence in the record from which the inference may be drawn that delivery, either actual or constructive was ever made of these sheep to appellants.

2. Under an executory contract to sell, where the vendor retains possession of the property, and there is no evidence tending to show either actual or constructive delivery thereof to the vendee, error cannot be predicated upon an instruction by the court that the law presumes every sale of personal property to be fraudulent and void as against purchasers in good faith, subsequent to such sale, unless change of possession of the property from the seller to the purchaser accompanies and follows the sale, and that such change must be an open, visible change, manifested by such outward signs as rendered evident to persons dealing with the property that the possession of the former owner as such had ceased, and that the delivery incident to such change of possession must be an actual manual delivery when the property is susceptible of it.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action in claim and delivery. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Walters Hodgin & Bailey, for Appellants.

What constitutes an immediate delivery, or an actual change of possession required by the statute, cannot be tested by any fixed or determined rule. (Simons v. Daly, 9 Idaho 87, 72 P. 507; Hazard v. Cole, 1 Idaho 276; Rapple v. Hughes, 10 Idaho 338, 77 P. 722; In re McCartney, 218 F. 717.)

The purchase of the sheep in question by the appellants was an actual bona fide transaction, made in good faith. (Trousdale v. Winona Wagon Co., 25 Idaho 130, 137 P 372.)

J. W. Taylor, for Respondent.

Sec. 5434, C. S., requires such change of possession as will furnish evidence of a change of ownership, and the instructions of the trial court are strictly to that effect. Under the instruction, the jury was free to decide whether the evidence established such a change of possession. (Hallett v. Parrish, 5 Idaho 496, 51 P. 109.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This is an action in claim and delivery, brought by appellants to recover from respondent about 25 Hampshire ewes, or the value thereof.

The record discloses that prior to July 9, 1916, one Edward Abbl was the owner and in possession of a small band of sheep, which were pastured on a farm owned by his father John Abbl, and on said date appellant R. E. Brown contracted to purchase this band, or a portion thereof--the evidence being conflicting upon this point--giving his check for $ 40 to bind the bargain, on which now appears the notation: "Payt on Rams and all ewes. Rams at 20 & ewes at 12.00 Rams del. Aug 1st & ewes sometime Sept.," but which Abbl contends has been altered; that on July 29, 1918, eleven rams were delivered by Abbl to appellants, for which they then gave their check for $ 220, bearing the notation, "Payt on contract"; that about August 10, 1918, appellants selected from the band five ewes, which they took with them, and on August 22, 1918, they also gave Abbl their check for $ 20, marked "Payt on sheep." On August 23, 1918, Abbl sold and delivered to respondent the sheep remaining in his possession, 27 ewes, for $ 13 each, or a total of $ 351, for which he received respondent's check. About September 1, 1918, appellants went to John Abbl's ranch to receive...