Molloy v. Beard

• Decision Date: 30 January 1926
• Citation: Molloy v. Beard, 42 Idaho 115, 243 P. 823 (Idaho 1926)
• Parties: J. M. MOLLOY, Respondent, v. MEL BEARD, Appellant
• Court: Idaho Supreme Court

243 P. 823

42 Idaho 115

J. M. MOLLOY, Respondent, v. MEL BEARD, Appellant

Supreme Court of Idaho

January 30, 1926

CLAIM AND DELIVERY-SALE-CONTRACT OF SALE-RESCISSION OF CONTRACT-CONFLICTING EVIDENCE-DELIVERY OF CHATTEL SOLD-CONSTRUCTIVE DELIVERY-SALE WITHOUT DELIVERY OF POSSESSION.

1. Contract to sell may be rescinded by agreement of the parties.

2. It is substantial evidence that seller elected to rescind his contract to sell, that he later gave to a third person a bill of sale of the same articles.

3. Conversation of one who had contract to buy with one whom he knew had later received a bill of sale of and paid for the same articles is substantial evidence of his election to rescind his contract to purchase.

4. To transfer title to chattel, actual possession of article need not be transferred, where no creditor, subsequent purchaser or encumbrancer is involved, but constructive delivery by bill of sale is enough.

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Action in claim and delivery. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

John J Blake, for Appellant.

The judgment is contrary to law. (C. S., sec. 5434; Rickey v Stewart, 45 Minn. 437, 48 N.W. 22; 35 Cyc. 189; Pound v Pound, 60 Minn. 214, 62 N.W. 264.)

Frank F. Kimble, for Respondent.

"When the goods are at the time of the sale in the possession of a third person actual manual delivery is not necessary, but it is sufficient if the goods are pointed out and turned over to the buyer, who arranges with such third person to hold the goods on his behalf." (35 Cyc. 193.)

"If there is a conflict in the evidence and there is evidence in the record which if uncontradicted would support the judgment, this court must sustain it. (Fritcher v. Kelley, 34 Idaho 468, 471, 201 P. 1037; Mahaffey v. Carlson, 39 Idaho 162, 228 P. 793.)

"When property sold in good faith is, at the time, in the custody of a third person, notice to him is sufficient to constitute delivery, as to subsequent purchasers or attaching creditor. " (Lufkin v. Collins, 2 Idaho 150, 7 P. 95.)

A constructive delivery is sufficient when property is in the hands of third parties at the time of the sale. (Cornwall v. Mix, 3 Idaho 687, 34 P. 893.)

TAYLOR, J. William A. Lee, C. J., and Wm. E. Lee, Budge and Givens, JJ., concur.

OPINION

TAYLOR, J.

This is an action in claim and delivery to recover a team of horses. Trial by jury was waived, and the court made findings of fact and conclusions of law that plaintiff was the owner of the horses and entitled to the possession thereof, and entered judgment in his favor. This appeal is from the judgment.

Appellant, defendant below, specifies as error that the findings are contrary to and not supported by the evidence. One Tague was the original owner of the horses. The plaintiff alleged and proved the execution and delivery of a bill of sale from Tague to himself on June 27, 1923, conveying and warranting title to the horses, and his payment therefor. Defendant contends that Tague sold them to him on May 19, 1923. The case turns on whether the transaction between Tague and defendant was a sale or a contract to sell, and whether, if the latter, it was rescinded. Defendant contracted on that date to buy the team and pay for them on June 1st or 10th. Payment was not made, and on June 26th defendant gave Tague a check which was dishonored. The next day Tague executed the bill of sale of the team to plaintiff, who paid for them. The dishonored check was afterwards returned to defendant, and he has paid nothing for the team.

Appellant contends that, even conceding that the first transaction was a contract to sell only, the court erred in finding that he rescinded it. A contract to sell may be rescinded by agreement of the parties. The bill of sale is substantial evidence that Tague elected to rescind, and there is other evidence that defendant did, also. Defendant knew that plaintiff paid for the team. Plaintiff testified...