Cullyford Co. v. Joss

• Decision Date: 18 May 1926
• Docket Number: 1247
• Citation: 35 Wyo. 10,246 P. 27
• Parties: CULLYFORD CO. v. JOSS [*]
• Court: Wyoming Supreme Court

246 P. 27

35 Wyo. 10

CULLYFORD CO. v. JOSS ^[*]

No. 1247

Supreme Court of Wyoming

May 18, 1926

APPEAL from District Court, Niobrara County; CYRUS O. BROWN, Judge.

Action by The Cullyford Company against Chris Joss, Sheriff of Niobrara County, to recover certain steam radiators and a water tank, seized by defendant upon a writ of execution. There was a judgment for plaintiff and defendant appeals.

Affirmed.

Thomas M. Fagan, for appellant.

The court erred in admitting parol testimony of terms of the written contract without showing diligence to procure it; 10 R. C. L. 884-903; respondent failed to establish ownership of the property or right of possession; burden was on plaintiff to prove right of possession; Dayton v. Bank, 1 Wyo 263; the contract was not recorded; 4713 C. S.; title passed by delivery and was so intended; 4739-4741 C. S.; Chapman v. Lathrop, 16 A. D. 432; Leatherbury v. Conner, (N J.) 33 A. S. R. 672; unreasonable delay constitutes waiver of right to reclaim; 23 R. C. L. 1388; Frech v Lambert (Pa.) 11 L. R. A. N. S. 948; respondent is estopped; 10 R. C. L. 842; Jackson v. Lodge, 36 Cal. 38; estoppel may be proven under general denial; Tyler v. Hall, 27 A. S. R. 337; Grum v. Barney, 55 Cal. 254; plaintiff relied upon the hotel company and not upon the property in issue and was estopped to claim title; 2 R. C. L. 236; where the only issue was one for the court, there should be a directed judgment on reversal; Warren Bros. v. Kendrick, (Md.) 140 A. S. R. 445.

Harold I. Bacheller, for respondent.

Plaintiff agreed to furnish the fixtures and install them in a building under a contract calling for 85% of labor and materials installed each month; the sufficiency of a showing of lost documents that will justify parol evidence of their contents is within the discretion of the court; Herndon v. Givens, 16 Ala. 261; Long v. Moore, 17 Pa. Dist. 578; 22 C. J. 964; U.S. v. Reyburn, 6 Pet. 352; 8 L. ed. 424; Minor v. Tillotston, 8 L. ed. 96; Kenniff v. Caulfield, 73 P. 803; evidence of collateral matters is unaffected by the best evidence rule; 22 C. J. 978; Scullin v. Harper, 78 F. 460; Jones Ev. Vol. 2, Page 195; rule does not exclude evidence unless objection is made; the conditional sales principle is not involved; plaintiff was not estopped from showing title; materials had not been included in the building; and hence remained the property of the plaintiff; Rochelle v. Co., 164 Ill.App. 412; Manchester Mills v. Rundlett, 23 N.H. 271; Johnson v. Hunt, 11 Wend. (N. Y.) 135; Fairfield Co. v. Nye, 60 Me. 372; Bosston v. Marriott, 4 Giffard 436, 66 Reprint 778; the judgment should be affirmed.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is a replevin action in which the Cullyford Company, a corporation, is plaintiff and the Sheriff of Niobrara County is defendant. The case was tried without a jury; judgment was for the plaintiff, and defendant has appealed.

There is hardly any dispute about the facts. In 1919 and 1920 the plaintiff, as contractor, was engaged in installing the plumbing and heating appliances in a hotel being constructed at Lusk. Among the materials ordered by plaintiff, to be used in fulfilling the contract, were a water tank and 190 steam radiators, the property involved in this action. The property, when received by plaintiff, was placed in the public street adjacent to the building. It was never installed in the building nor moved to the real estate of the hotel company. The reason for this was that the construction of the building stopped for lack of funds, and plaintiff ceased work under its contract. The property in question remained in the street or on the sidewalk in front of the hotel building until July, 1921, when it was moved to an alley at the side of the building. It remained there until it was seized by the defendant on an execution on a judgment against the hotel company in favor of Mr. Nat Baker. The legality of the execution is not questioned. After the property had been seized by the defendant on the execution, the plaintiff brought this action, claiming to be the owner and entitled to the possession of the seized property. The point in issue was whether the property at the time of the levy of the execution belonged to the plaintiff or to the hotel company.

The plaintiff's vice president testified that the plumbing and heating for the hotel was being installed by the plaintiff under a written contract with the hotel company. After this witness had testified that the writing could not be found and had described his efforts to find it, he was permitted to state the substance of the contract. The defendant claims in this court that this was error, for the reason that the testimony was not sufficient to show that the writing was lost. It does not appear that this objection was made in the trial court. The only objection there was that the writing was the best evidence. It is hardly to be contended that that objection was sufficient to raise the question as to the sufficiency of the showing that the writing was lost. We may say, however, that we do not think the court erred in permitting the witness to testify as to substance of the contract.

The contract provided that materials furnished should be paid for when installed. There is no contention that the property in question was ever installed in the building or paid for by the hotel company or made the subject of any claim by plaintiff against the hotel company. The hotel company never claimed or exercised any right of...