Cornwall v. Mix

• Decision Date: 20 November 1893
• Citation: 3 Idaho 687,34 P. 893
• Parties: CORNWALL v. MIX
• Court: Idaho Supreme Court

34 P. 893

3 Idaho 687

CORNWALL v. MIX

Supreme Court of Idaho

November 20, 1893

REPLEVIN-FRAUD IN SALE.-Under general denial in replevin defendant may prove fraud in the sale to plaintiff.

SECTION 3021 OF THE REVISED STATUTES CONSTRUED.-Evidence in this case considered, and held, not to establish fraud, or bring case within provisions of section 3021 of the Revised Statutes of Idaho.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded.

D. C Mitchell and C. J. Orland, for Appellant.

Statements made by the vendor of chattels, after a completion of the sale and a delivery of the chattels has been made to the vendee, and not connected with the sale, are not admissible in evidence against the vendee. (Allen v. Kirk, 81 Iowa 658, 47 N.W. 906; Guaranty Co. v. Gleason, 78 N.Y. 503; Lewis v. Rice, 61 Mich. 97, 27 N.W. 867; Frink v. Roe, 70 Cal. 296, 11 P. 829; Beard v First Nat. Bank, 41 Minn. 153, 43 N.W. 7; Walden v Purvis, 73 Cal. 518, 15 P. 91; Smith v. Jensen, 13 Colo. 213, 22 P. 434; Simpson v. Armstrong, 20 Neb. 512, 30 N.W. 941; Kramer v. Settle, 1 Idaho, 485.) The court erred in instructing the jury upon the question of fraud; it was not in issue in the case. The defendants have not alleged fraud in their answer. Fraud must be specially pleaded, and cannot be sustained as a defense under a general denial. (2 Estee's Pleading and Practice, 3d ed., sec. 3539; 8 Am. & Eng. Ency. of Law, 653.)

Forney & Tillinghast and G. G. Pickett, for Respondent.

The defendant may avail himself of the defense under a general denial, that the conveyance under which the plaintiff claims title was fraudulent, and void as to the defendant. (Mullen v. Noonan, 44 Minn. 541, 47 N.W. 164; Tupper v. Thompson, 26 Minn. 385, 4 N.W. 621; Furman v. Tenny, 28 Minn. 77, 9 N.W. 172; Grum v. Barney, 55 Cal. 283.) Under our statute, if the immediate possession of the property is not delivered, in law, presumption of fraud is conclusive. (Woods v. Bugbey, 29 Cal. 475.) In the first place, there was no immediate delivery. In the case of Chaffin v. Doub, 14 Cal. 384, the court below gave the following instructions, which were approved by the supreme court: "In determining what under the law is an immediate delivery of the property sold, you are to consider the surrounding circumstances, nature of the property to be delivered, its situation and the difficulty or ease of making it, referring to whether the delivery was made in the ordinary way which men of prudence and business would make delivery if they were acting in good faith, and with the desire and intent of carrying out their contract of sale according to law." (O'Gara v. Lowry, 5 Mont. 427, 5 P. 586.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This is an action of claim and delivery, brought by plaintiff against defendant to recover possession of certain personal property, to wit, one stallion and one jackass, alleged by plaintiff to have been wrongfully taken from his possession by defendant. The complaint alleges that at the time of the taking the plaintiff was "the owner, in possession, and entitled to the immediate possession" of the property described; alleges value of property, and claims damages for detention. Answer denies ownership of plaintiff, and his right to possession, and also sets up justification under writ of attachment against B. Williams. The case was tried before the court with a jury; verdict and judgment for defendant, from which, as well as from the order of the district court overruling plaintiff's motion for a new trial, plaintiff appeals to this court.

The following facts appear from the record: In January, 1892, one B. Williams, being the owner of the property described in the complaint, to wit, one stallion and one jackass, which property was at the time in the care and custody of one Maguire at Moscow, Latah county, Idaho, said Williams (then being at Memphis, Tennessee), executed to plaintiff, under date January 14, 1892, a bill of sale of said property for the consideration (as expressed in said bill of sale) of $ 800. On receipt of the bill of sale plaintiff presented same to Maguire, and demanded possession of the property. Maguire declined to surrender possession of the property, except upon condition that plaintiff would pay him what Williams owed him (Maguire). What the amount of the indebtedness claimed by Maguire to be due to him from Williams was does not distinctly appear; but it does appear from the record that, besides a bill of $ 192,25, due Maguire for the keeping of said animals, there was a note past due at the Moscow National Bank, upon which Maguire was a joint maker with Williams, which note was for the sum of $ 659.75 dated December 12, 1891, and bore interest at the rate of one and one-half per cent per month. It would seem from the evidence in the record that the bill of sale sent by Williams to plaintiff was a proposition, or conditional sale, the terms or conditions of which were expressed in a letter or letters written at the time by Williams to plaintiff, which letters although not appearing in the record, are testified to by both plaintiff and Williams. The consideration for the sale, as testified to by both plaintiff and Williams, was the payment by plaintiff of the said note executed by Williams and Maguire to the Moscow National Bank; and also the bill of Maguire for the keeping of said animals. Plaintiff did not, it seems, at once accept of the sale, but some time after. Plaintiff says "some days after" the receipt of the...