Gaar, Scott & Co. v. Nichols

• Decision Date: 20 December 1901
• Parties: GAAR, SCOTT & CO. v. NICHOLS, SHERIFF, ET AL.
• Court: Iowa Supreme Court

115 Iowa 223

88 N.W. 382

GAAR, SCOTT & CO.

v.NICHOLS, SHERIFF, ET AL.

Supreme Court of Iowa.

Dec. 20, 1901.

Appeal from district court, Union county; W. H. Tedford, Judge.

Action by plaintiff to recover damages for conversion by defendant in wrongfully levying upon and selling certain property of the plaintiff under an execution against one Petted. Trial to the court without a jury. Judgment for plaintiff against the sheriff and his bondsmen, who are joined with the sheriff in the action. Defendants appeal. Affirmed.Preston & Moffit and Frank Wisdom, for appellants.

Carr & Parker and P. C. Winter, for appellee.

McCLAIN, J.

There was a written contract for the sale of the property in controversy, which was a steam traction engine, by plaintiff to Petted, in which it was stipulated that at the time of delivery Petted should execute notes for the purchase price, secured by mortgage on the property, and it was expressly provided that the title to the engine should not pass until settlement therefor was concluded and accepted by plaintiff. The engine was shipped to the agents of plaintiff, to be delivered to Petted in pursuance of the contract, but it appears that Petted was by said agents given possession of the engine for trial before completing the settlement required by the terms of the contract, and while he thus had actual possession the defendant, as sheriff, levied thereon under a judgment against him in favor of the Milwaukee Harvester Co., and the question before us is whether, by the action of plaintiff's agents, title to the engine has been so far transferred to Petted that the levy on the property as his was valid. There were other issues in the case, and evidence was introduced relating to such issues, but we have sufficiently set out the facts which are material to the determination of the appeal on the view which we take of the case.

Appellants contend that under the provisionsof Code, § 2905, no sale wherein the transfer of title to personal property is made to depend upon any condition shall be valid against any creditor or purchaser of the vendee in actual possession, obtained in pursuance thereof, without notice, unless evidenced in writing and duly recorded, the levy upon the engine in the hands of Petted, which it is contended was without notice of plaintiff's rights, was valid, inasmuch as there was no recorded instrument of conditional sale. But the instrument was not one of conditional sale. It stipulated that delivery under the contract of sale should not be made until the terms of the contract were complied with by Petted. There is no pretense that plaintiff's agents had authority to waive these stipulations, and there is at least some evidence that the delivery to Petted was not intended or understood to be by way of waiver, but only for the purpose of enabling him to test the engine before acceptance of it. That such a contract does not constitute a conditional sale, within the meaning of the section of the Code above...