McCormick v. Fuller & Williams

• Decision Date: 22 April 1881
• Citation: 8 N.W. 800,56 Iowa 43
• Parties: MCCORMICKS v. FULLER & WILLIAMS ET AL
• Court: Iowa Supreme Court

8 N.W. 800

56 Iowa 43

MCCORMICKS v. FULLER & WILLIAMS ET AL

Supreme Court of Iowa, Des Moines

April 22, 1881

Appeal from Winneshiek Circuit Court.

REPLEVIN for a harvester. There was a verdict and judgment for plaintiffs. Defendants appeal.

AFFIRMED.

Brown & Wellington, for appellants.

Willett & Willett, for appellee.

OPINION

BECK J.

I. An opinion was filed in this case at the June term, 1880 reversing the judgment of the Circuit Court. Upon petition of plaintiff a rehearing was granted, and the cause has been again argued. The judgment was reversed for error in an instruction given to the jury, which was to the effect that if the jury found there was an agreement between plaintiffs and one under whom they claimed, by which plaintiffs could acquire the title, but no actual transfer had been made, the plaintiffs are entitled to recover. The instruction was incorrectly set out in the abstract. As given, it is to the effect that an absolute transfer of the property, not an agreement to transfer in the future, would entitle plaintiffs to recover. The instruction was corrected in an amended abstract, which escaped our attention at the time the opinion was prepared and filed.

II. The petition alleges that plaintiffs are the absolute owners of the property, and entitled to the possession thereof. The defendants, in their answer, aver that they are the owners of the harvester, and entitled to the possession under a chattel mortgage executed by Ole Oleson Haave, who was the owner and in the possession of the property. The plaintiffs supported their claim to the property by evidence tending to prove that they had sold the harvester to Haave with a warranty and an agreement that, if it did not comply with the terms of the warranty, plaintiffs would "take back" the machine. The harvester was defective and did not "work all right," and the plaintiffs, through their agent, "did take the machine back," upon the request of Haave, and left it in his possession to be taken care of for the plaintiffs. The defendant, after these transactions, induced Haave to execute to them a chattel mortgage upon the machine. At the time Haave informed defendants that the property was owned by plaintiffs, and did not belong to him. Defendants' evidence tended to contradict the testimony offered by plaintiffs, and to show that they had no notice that the harvester had been "taken back" by plaintiffs.

III. The court instructed the jury to the effect that if there had been an executed agreement under which the machine was "taken back" i e, the ownership was transferred to plaintiffs, of which defendants had notice when the mortgage to them was executed, they should find for plaintiffs. But if the jury should find that plaintiffs did not own the property when the mortgage to defendants was executed, or the defendants at the time had no notice of plaintiffs' claim, or the agreement between plaintiff and Haave was to the effect that the machine should be returned to plaintiffs upon delivery to Haave of the notes given to plaintiffs for the property, which had not been done, then their verdict should be for defendant. These instructions are clearly correct. If there was an unconditional transfer of the property back to plaintiffs, of which defendants had notice, they are entitled to the property. This position needs for its support neither argument nor authorities. It is based upon elementary principles of the law. The instructions requested by defendants are substantially covered by those given; there was no error in refusing them.

IV. The agreement with Haave, under which the property was transferred to plaintiffs, was made by two agents of plaintiffs. Haave did not speak the English language, and the principal agent was unacquainted with the language spoken by Haave. The other agent spoke both languages, and acted as an interpreter in the negotiation between the principal agent and Haave. This agent was permitted, against defendants' objections, to testify as to the conversation, through the interpreter, between himself and Haave. Defendants' counsel insists that the as agent did not understand Haave's words, and depended upon the interpreter in...