Bunce v. McMahon

• Decision Date: 25 October 1895
• Citation: 42 P. 23,6 Wyo. 24
• Parties: BUNCE v. McMAHON
• Court: Wyoming Supreme Court

42 P. 23

6 Wyo. 24

BUNCE v. McMAHON

Supreme Court of Wyoming

October 25, 1895

Commenced in District Court October 25, 1893.

ERROR to District Court for Fremont County, HON. JESSE KNIGHT Judge.

Action to recover the possession of specific personal property, by Thomas M. McMahon against Austin M. Bunce.

Upon the trial the plaintiff claimed that on November 2, 1891 Mrs. Himmelsbaugh made a conditional sale and delivery of the property to one Wilson, the title to remain in Mrs Himmelsbaugh until payment by Wilson, the consideration moving from Wilson being his agreement to build a house for Mrs. Himmelsbaugh in Lander the succeeding June; that Wilson did not build the house, and did not in any manner or at any time pay anything upon the purchase of the property in question; that on October 19, 1893, Wilson, wrongfully assuming to be the absolute and unconditional owner of the property, sold and delivered the same to the defendant, Austin M. Bunce; that on October 23, 1893, the plaintiff McMahon, without knowledge of the rights of Mrs. Himmelsbaugh in the property, and without knowledge of the sale by Wilson to Bunce, purchased the property of Wilson, who, at the time, represented that he was the owner of the property, subject only to a lease made by him to Bunce on the 19th of October; that on learning of Mrs. Himmelsbaugh's rights in the property the plaintiff purchased the same from her, and thereafter brought this suit in replevin to recover possession from Bunce.

The defendant claimed, upon the trial, that the sale by Mrs. Himmelsbaugh to Wilson was an absolute and unconditional one, and that by his purchase from Wilson the defendant became the absolute and unconditional owner of the property. He claimed the right of property, however, whether the sale was absolute or conditional. It was claimed on his part, that if the sale had been conditional, the conditions had been waived, and could not be insisted on.

Judgment affirmed.

Brown and Arnold for plaintiff in error.

It was necessary for plaintiff below to prove demand for the property before suit. Boughton v. Bruce, 20 Wendell, 234; Root v. Bonnema, 22 Wis. 514; W. & W. Mfg. Co. v. Teetz Coff, 53 Wis. 211; Roach v. Bindee, 1 Colo. 322; Wood v. Cohen, 63 Am., Dec. 389, 6 Ind. 56; Connor v. Comstock, 17 Ind. 94; Torian v. McClure, 83 Ind. 312; Roberts v. Norris, 67 Ind. 391; Campbell v. Jones, 38 Cal. 507; Peake v. Conlan, 43 Iowa 297; Chambers v. Winn., 2 Am. , Dec., 713.

If the vendor of Bunce was a conditional vendee in possession, the latter, being a purchaser in good faith and for value, obtained the conditional title. (Summer v. Woods, 42 Am. R., 104; Goss v. Coffin, 66 Me. 432.) It was the right of Bunce to pay to the ones who originally sold to his vendor, or to McMahon who purchased from them the amount contracted to be paid, even after notice that the contract of sale was terminated, and after demand for either the payment or return of the property. (Nattin v. Riley, 14 S.W. 1100; Taylor v. Finley, 48 Vt. 78; Hutchins v. Munger, 41 N.Y. 155.) The failure of original owner to insist upon payment, was at least a waiver of default, and made the contract a continuing one that could be terminated only by notice and demand. Another reason why demand was required is that the vendor in a conditional sale may, on default, either recover the property or sue for the purchase price. The failure of original vendor to make any demand for three years that the conditional vendee perform his contract, was a waiver of his right as against an innocent purchaser. She did not in conversation with Bunce, the purchaser from his vendee, indicate that she still had an interest in the property, although the talk was about the property. That constituted a waiver. (Hall v. Timlan, 14 S.E. 745; Tufts v. Wayne, 45 Mo. App., 42; 12 L. R. A., 700.) The instruction singling out a witness, and charging the jury that if he had sworn falsely, his entire testimony could be disregarded unless corroborated, was erroneous. (Thompson on Tr., Sec. 2423, 2425; State v. Stout, 31 Mo. 406; State v. Cushing, 29 Mo. 215; State v. McDavitt, 69 Iowa 549; People v. Casey, 65 Cal. 260.)

The conduct of the jurors in taking into the jury room the bill of sale which was claimed to constitute the evidence of the original sale, and some parts of which were disputed, was erroneous, and this is not a case where the rule applies that a juror shall not be permitted by affidavit to discredit his verdict. Thompson on Tr., Vol. 2, page 1945, and cases cited; Kuirdnier v. Shields, 70 Iowa 428; McLeod v. Ry. Co., 11 Iowa 138; Bulen v. Granger, 58 Mich. 274; Hix v. Drury, 5 Pick. 297; Short v. West, 30 Ind. 367; Lotz v. Briggs, 50 Ind. 346; Toohey v. Sarvis, 78 Ind. 474; Thompson on Tr., page 1946; Alger v. Thompson, 1 Allen, 453.

Lacey and Van Devanter, for defendant in error.

That no demand was necessary to have been proved in this case is amply shown by the following authorities: Smith v. McLean, 24 Iowa 322; Homan v. LaBoo, 1 Neb., 210; Pyle v. Warren, 2 id., 241; Ogden v. Warren, 36 Neb. 715; Raper v. Harrison, 37 Kan. 243; Chapin v. Jenkins, 50 id., 385; Greenawault v. Wilson, 52 id., 109; Myrick v. Bill, 3 Dak., 284; Guthrie v. Olson, 44 Minn. 404; Miller v. Adamson, 45 id., 99; Seattle Bk. v. Meerwaldt (Wash.), 36 P. 763; Lamping v. Keenan, 9 Colo. 390; 12 P. 434; Perkins v. Barnes, 3 Nev., 557; Lewis v. Smart, 67 Me. 206; O'Neil v. Bailey, 68 Me. 429; Newall v. Newall, 34 Miss. 386; Eldred v. Oconto Company, 33 Wis. 140; Felton v. Hales, 67 N.C. 107; Cobbey on Replevin, Secs. 448, 450, 451, 459, 467, 474; Wells on Replevin, Sec. 78; Ingraham v. Baldwin, 9 N.Y. 45; Smith v. Ogg Shaw, 16 Cal. 88.

Conditional sales are upheld against the conditional vendee (Gregory v. Morris, 1 Wyo., 213) and against bona fide purchasers for value (Warner v. Roth, 2 Wyo. 63).

Assuming that Bunce succeeded to all the rights of the conditional vendee, what were those rights? The conditional vendee in possession had paid nothing, the day of payment had passed; and he was also holding in hostility to the superior title. His possession was therefore wrongful. Bunce therefore succeeded to such wrongful possession and continued to assert a claim of absolute ownership. He did not, on the trial, assert a right to pay the amount originally contracted for. One can not be an absolute owner and conditional vendee at the same time. Neither will he be permitted in the trial court to claim absolute ownership, and then in the appellate court claim protection as a conditional vendee. The question of estoppel was fully presented to the jury by the instructions, and the jury found for the plaintiff in that respect. The language of counsel in argument complained of was but a fair comment upon the action of the defense during the trial. Counsel and the jury were authorized to draw any reasonable inference from the conduct of the defense in the matter referred to.

The examination by the jury of the alleged bill of sale during their deliberations could not have been prejudicial. The genuineness of part of it was the principal question in the case. There is nothing prohibiting a jury from taking written exhibits of that character with them in their retirement. Affidavits of jurors will not be received to impeach their verdict. (1 Grenl. Ev., Sec. 252, a.; Thompson Tr., Sec. 2603; Thomp. & Mer. on Jurors, Sec. 414, 440; Hilliard New Tr. (2d Ed.), 240; 2 Graham & W. New Tr., 1428.) The instruction as to disregarding the entire testimony of a witness who swears falsely was not erroneous, although it mentioned a single witness. O'Rourke v. O'Rourke, 43 Mich. 58; Hitchcock v. Davis, 87 id., 629; Cole v. R. R., 95 id., 77; People v. Calvin, 60 id., 113; Gillett v. Wimer, 23 Mo.; State v. Dwier, 25 id.; Paulette v. Brown, 40 id.; Ammerman v. Teeter, 49 Ill. 400; Hirschman v. People, 101 id., 568; Rider v. People, 110 id.; Bressler v. People, 117 id., 422; Siebert v. People, 143 id., 571; Minich v. People, 8 Colo. 440; Rose v. Otis, 18 Colo. 59; Engmann v. Immel, 59 Wis.; Commonwealth v. Downing, 4 Gray; Cornelius v. Hambay, 150 Pa. 359; Herstine v. Lehigh, etc., Co., 151 id., 244; State v. Sterrett, 71 Iowa 386; St. Louis v. State, 8 Neb., 405; People v. Pemecky, 99 N. Y.; People v. Crowley, 102 id., 234; State v. McLane, 15 Nev. 345; State v. Hing, 16 id., 307; Faulkner v. Territory (N. M.), 30 P. 905; People v. Cronin, 34 Cal. 191; People v. Knapp, 71 id.; Haines v. Territory, 3 Wyo., 168; Reagan v. United States, 157 U.S. 301.

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

Defendant in error, McMahon, brought this suit in the district court of Fremont County to recover the possession of specific personal property, the same consisting of certain sawmill machinery. A jury trial was had and a verdict rendered in which McMahon was found to be the owner of the property at the time of the commencement of the action and entitled to the immediate possession thereof. The property had been delivered to the plaintiff shortly after the suit was commenced upon his furnishing an undertaking as provided by statute.

The defendant below, plaintiff in error here, filed and presented his motion for new trial, which was overruled, to which exception was duly reserved, and he prosecutes this proceeding, claiming error occurring upon the trial and asking a reversal of the judgment and a vacation of the verdict.

Several errors are assigned, one of them being that the court erred in overruling the motion for new trial.

As far as a discussion of the points urged are deemed material they will be considered as far as practicable in the order in which they are presented in the briefs.

It is charged, in the first place, that...