Chickering & Sons v. White

• Decision Date: 07 February 1890
• Citation: 42 Minn. 457
• Parties: CHICKERING & SONS <I>vs.</I> JOHN W. WHITE.
• Court: Minnesota Supreme Court

42 Minn. 457

CHICKERING & SONSvs.

JOHN W. WHITE.

Supreme Court of Minnesota.

February 7, 1890.

Appeal by plaintiff (a corporation) from a judgment of the district court for Ramsey county, where the action (brought to recover 30 pianos, made by plaintiff, and of the alleged value of $15,900) was tried by Vilas, J., and judgment ordered for defendant at the close of plaintiff's case. The evidence for the plaintiff tended to prove that on August 16, 1887, the pianos were sold to plaintiff, at St. Paul, by Petersen & Blaikie, under the following circumstances: Some months prior to that date the pianos had been sold by plaintiff to Petersen & Blaikie, and shortly before that date Petersen (one of that firm) had resolved to move to New York and become a partner in a firm of piano-makers, continuing, however, to carry on his St. Paul business, which was to be left in charge of Blaikie. The plaintiff was dissatisfied with this proposed arrangement, and sent its agent to St. Paul, who verbally agreed with Petersen (acting for his firm) that the stock "should be turned into a consignment account," the plaintiff to retain, as accommodation paper, the notes that had been given on account of the price. The agent declined to make any arrangement as to future business, or even to agree that the pianos thus left on consignment should remain with Petersen & Blaikie. The pianos were at the time in the latters' ware-room, and the numbers were checked off, and the pianos set apart as the property of plaintiff. Plaintiff and its agent believed Petersen & Blaikie to be then solvent, and had no reason to believe the contrary; and Petersen also believed himself and his firm solvent, and had no contemplation of insolvency or any purpose of preferring plaintiff. He consulted and acted on the advice of counsel, who advised that the arrangement was an entirely proper one, and that no change from a purchase account to a consignment account needed to be made on the firm's books, and accordingly none was made. On October 11, 1887, Petersen & Blaikie made an assignment to defendant under the insolvent law.

H. J. Horn, for appellant.

John W. White (pro se) and John D. O'Brien, for respondent.

MITCHELL, J.

This action was brought to recover possession of a number of pianos which plaintiff had once sold on credit to Petersen & Blaikie, but which it claimed to have bought back from them on August 16, 1887. The defendant, as assignee, claimed the property as part of the assets of Petersen & Blaikie, under an assignment for the benefit of creditors made October 11, 1887, pursuant to the provisions of the insolvent law, (Laws 1881, c. 148;) his contention being that the alleged resale of the property by Petersen & Blaikie to plaintiff was void as to creditors, first, under the statute of frauds, (Gen. St. c. 41, § 15,) because there had been no actual and continued change of possession; and, second, under section 4 of the insolvent law, as a preferential conveyance. The case was tried by the court without a jury. The plaintiff introduced its evidence, and rested. Thereupon the defendant "moved for judgment in his favor upon the evidence introduced by the plaintiff," which motion the court granted, and ordered judgment for the defendant as prayed for in his answer, to which ruling the plaintiff excepted; and upon that order judgment was entered adjudging that plaintiff take nothing by its action, and that defendant is entitled to the possession of the property. From this judgment plaintiff appeals.

The practice adopted in this case was unauthorized and irregular, unless the motion for judgment be considered as merely one for a dismissal of the action. Woodling v. Knickerbocker, 31 Minn. 268, (17 N. W. Rep. 387;) Duluth Chamber of Commerce v. Knowlton, supra, p. 229. In this case it was evidently intended and understood to be a motion for a judgment on the merits. The court may order judgment on the pleadings, but not on the pleadings and evidence. Where the determination of a case is upon the merits, upon the evidence, there should be a verdict or findings as a basis for the judgment; otherwise the record will fail to show anything upon which the judgment rests. When a plaintiff rests, the defendant has the choice of one of two courses to pursue, — first, to move for a dismissal of the action, if he thinks the plaintiff has failed to prove a cause of action, or if he desires a determination upon the merits; second, to introduce his evidence, or, if he deems this unnecessary, rest without doing so, and have a verdict or findings. Plaintiff waives any mere technical objection to the practice adopted in this case, but contends that the motion for judgment is to be considered as in the nature of a demurrer to the evidence under the old practice, and that the order for judgment, analogous to directing a verdict, is tantamount to a ruling that upon the evidence submitted the defendant was, as a matter of law, entitled to a decision in his favor. On the other hand, defendant seems to view the order for judgment as equivalent to a general finding of the issues of fact in his favor, and, as in the case of any other finding, it should not be reversed if the evidence reasonably tends to support it. In Duluth Chamber of Commerce v. Knowlton, supra, which was tried by a jury, and fully submitted by both parties, and upon the evidence thus submitted the plaintiff entitled to a verdict as a matter of law, we held that to "order judgment" was not a prejudicial irregularity, because in its effect equivalent to directing a verdict. But the order in the present case cannot be upheld or given effect on any such ground. The action was tried by the court, where findings of fact, separately stated, are required. The case had not been finally submitted by both parties; and, what is still more important, the evidence was such that it would have been sufficient to support a decision in favor of the plaintiff upon the issues of fact. Therefore we cannot see how it can be supported as a...