Harper v. People

• Decision Date: 09 May 1892
• Citation: 2 Colo.App. 177,29 P. 1040
• Parties: HARPER et al. v. PEOPLE, to Use of BEERS et al.
• Court: Colorado Court of Appeals

29 P. 1040

2 Colo.App. 177

HARPER et al. v. PEOPLE, to Use of BEERS et al.

Court of Appeals of Colorado

May 9, 1892

Appeal from district court, Elbert county; WILLIAM HARRISON, Judge.

Action by the people of the state of Colorado to the use of H.M Beers and others against Theodore S. Harper and others. From a judgment sustaining a demurrer to the answer, defendants appeal. Affirmed.

Rogers & Shafroth, for appellants.

Stuart Bros. & Andrews and Vandever & Martin, for appellees.

BISSELL J.

The matters in issue between these parties narrow the inquiry to a single question. An epitome of the facts will make the elements of the investigation exceedingly plain. In May 1888, the firm of Beers & Lee, composed of H.M. Beers and Albert Lee, were residents of the state of Kansas. At that date they sold to Berwick & Beers, who were domiciled in the same state, a lot of personal property on condition that the title should not vest in the vendees except upon payment of certain promissory notes, which were executed for the purchase price, and delivered to the vendors at the time of the sale. The notes contained the condition. The property was then in the possession of the vendors at the place of the contract, and was immediately turned over to the vendees, who brought it into this state. There is no averment in the complaint concerning the consent of Beers & Lee to the removal. It appears, however, that prior to the maturity of the paper one of the firm came to Colorado in pursuit of the property, took it into his possession, and started back to Kansas with it. This he had a right to do by the terms of the agreement. While on the journey he was intercepted by the sheriff of Elbert county, who seized the stuff under a writ of attachment issued in a suit brought by some creditors of Berwick & Beers to recover a claim against them. There is no question made concerning the regularity of those proceedings. The present suit was brought against the sheriff to recover for the taking and conversion. The sheriff justified by a plea of the judicial proceedings in which the writ issued. A demurrer to the answer was sustained, and the case was brought to the supreme court by appeal, and subsequently under the statute transferred to this court. It is conceded that by the law of Kansas the transaction was a valid one, and that Beers & Lee, by virtue of their agreement, were not divested of their title to the property, and had the right to enforce their claim, and take possession of the chattels wherever they might find them.

To those familiar with the law of Colorado the question to be settled has been foreshadowed by this statement. The radical difference between the law of the two states in such matters furnishes an apparent basis for the contentions of these parties. The law of Twyne's Case, 2 Coke, pt. 3, p. 80 is the rule in Colorado. Without a compliance with the statute, which provides a way in which such liens may be protected, there can be no sale of personal property in this state, with a valid reservation of the title and a lien for the benefit of the vendor, when the vendee is permitted to take and retain possession. This doctrine is clearly expressed in George v. Tufts, 5 Colo. 162. This plain principle does not determine the rights of these parties. They entered into a contract which was entirely valid and binding, both inter partes and as against third persons. Evidently the only question is whether this contract, valid where made, is enforceable in a state by whose laws it would be invalid if the contract had been entered into within its jurisdiction. There is considerable apparent diversity of opinion among learned courts on this inquiry. The differences, however, are more apparent than real. In general it may be said that, wherever there is...