Caldwell v. Garner

• Decision Date: 31 October 1860
• Citation: 31 Mo. 131
• Parties: CALDWELL, Respondent, v. GARNER, Appellant.
• Court: Missouri Supreme Court

31 Mo. 131

CALDWELL, Respondent,

v.GARNER, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1.What constitutes a delivery of personal property must depend very much on the particular character of the property and the circumstances attending the alleged delivery.

2.An instrument in writing purporting to be a present transfer of personal property operates, prima facie, as a complete transfer thereof from the day of its date.

3.Declarations made by an agent after the expiration of his agency are not admissible in evidence as such; they could constitute no part of the res gestæ.

4.Quere, what is the construction to be given to the second clause of the sixth section of the act concerning witnesses disqualifying assignors of accounts, judgments or things in action from testifying concerning facts occurring anterior to the assignment, and rendering grantors, vendors or assignors in deeds, instruments in writing affecting property, incompetent as witnesses to alter, change or qualify the proper effect and operation of the words and terms of such deed, instrument or writing?

Appeal from Marion Circuit Court.

This was an action to recover the value of certain railroad ties that had been levied on by the defendant under a writ of attachment as the property of one Broad. Said ties are claimed by the plaintiff to have been his at the time of the levy, by virtue of a sale and delivery to him by one Taylor as agent of said Broad.The plaintiff Caldwell and one White, in January, 1857, sold to Broad all the trees suitable for tie-timber on a certain piece of land, at the rate of four dollars per acre, payment to be made on the 1st of March, 1857.On the 27th of February, 1857, said Broad, by Taylor as his agent, executed an instrument in writing by which he delivered to said Caldwell all the ties, to be held as his property till the above contract for their payment should be satisfied in full.On the 3d of March, 1857, said ties were levied on as the property of said Broad under a writ of attachment issued February 26, 1857, at the instance of the defendant Garner.They were sold under the order of the court as the property of said Broad.At the trial, White was called as a witness in behalf of plaintiff.The defendant objected to his testifying on the ground that he was interested in the contract.He testified that on a settlement with Caldwell before February 27, 1857, he had transferred to plaintiff his interest in the claim against Broad.This was not by writing.The court permitted him to testify.He identified the ties levied on by the sheriff as those conveyed by Taylor as agent of Broad to plaintiff.

The court, at the instance of the plaintiff, gave the following instructions: “1.The admission of Broad, by his agent Taylor, in the instrument of writing, that the property or ties were then delivered to plaintiff is evidence against defendant of such delivery, and may be considered by the jury if they find from the evidence that said Taylor was authorized to make such delivery.2.If the jury find from the evidence that before the attachment was levied Lewis Broad delivered the ties in dispute to the plaintiff under a contract that plaintiff should hold said ties until his (plaintiff's) debt was paid, and that after said ties were so delivered the writ of attachment was by the direction of defendant levied on said ties, they ought to find for the plaintiff.”

The court, at the instance of the defendant, gave the following instruction: “The recital of delivery in the instrument of writing purporting to have been executed by Taylor as the agent of Lewis Broad is not conclusive proof of an actual delivery; and unless the jury believe from the evidence that Taylor was the agent of Broad to deliver the ties, and that he did actually deliver them in pursuance of the terms of the instrument, they will find a verdict for the defendant.”

The following instructions asked by defendant were refused: “1.On the delivery of the attachment to the sheriff on the 26th of February, a lien attached from that time upon the property of Broad. 2.The date of the instrument from the agent of Broad, conveying to Caldwell, is not prima facie evidence of the fact of delivery on the date stated in the instrument, but the fact of delivery thereof must be proved by testimony satisfactory to the jury to have been before the time of the levy by the sheriff.3.There is no proof that the property was delivered to plaintiff by Broad's agent to warrant a verdict for plaintiff.4.The assignment of the interest of White to plaintiff in the contract must have been in writing to enable plaintiff to sue in his own name.”The jury were instructed as to the measure of damages.

Pratt & McCabe, for appellant.

I.The only proof of sale and delivery before the levy was the date of the instrument signed by Taylor.Delivery was essential.Broad's contract was to pay for the ties on the 1st of March, 1857.The date is not prima facie evidence that the instrument was made at the time of its date.(2 Stark. Ev. 147;Mood. & Mal. 270.)White was not a competent witness.The mere verbal transfer of his interest to Caldwell was not sufficient.The first instruction given for plaintiff was erroneous.The assertion in the instrument that the ties were delivered is no evidence of a delivery in fact.So the second instruction.The date of the instrument was not evidence of the fact of delivery.The court erred in refusing the second instruction asked.The assignment should have been in writing.It was an interest arising out of realty.The levy of the...