Morrison v. Oium

• Decision Date: 17 November 1892
• Citation: 54 N.W. 288,3 N.D. 76
• Parties: MORRISON v. OIUM, Sheriff.
• Court: North Dakota Supreme Court

3 N.D. 76

54 N.W. 288

MORRISON

v.OIUM, Sheriff.

Supreme Court of North Dakota.

Nov. 17, 1892.

Syllabus by the Court.

1. When, at or prior to the time of the execution of a bill of sale of personal property, the vendor, with intent to transfer the title and possession of the same, pointed it out to the agent of the vendee, where it was contained in boxes and crates, and stood in a warehouse, and subsequently locked the building, and delivered the key to such agent, who thereafter retained it, there was such an immediate delivery and actual and continued change of possession as fulfills the requirements of section 4657, Comp. Laws.

2. Such delivery is not impaired by the fact that a third party may also have had property in the same warehouse, and held a key thereto; nor by the further fact that the vendor may have agreed with such third party that his possession should be exclusive.

Appeal from district court, Ransom county; W. S. Lauder, Judge.

Action for the possession of personal property by James Morrison against Thomas Oium, sheriff. Plaintiff had judgment, and defendant appeals. Affirmed.

Goodwin & Van Pelt, for appellant. C. W. Buttz, for respondent.

BARTHOLOMEW, J.

Plaintiff and respondent claims certain personal property as vendee. Defendant and appellant, as sheriff, claims possession of the same by virtue of an attachment against the property of respondent's vendors. Respondent, in his complaint, claimed title through a bill of sale executed and delivered on November 9, 1887. At the hearing, against appellant's objections, respondent was permitted to give evidence of an oral contract of sale made at an earlier date, and delivery of possession thereunder. This is assigned as error. If so, it is without prejudice. It is undisputed that a bill of sale was executed and delivered on November 9th, and that the attachment was not served until November 10th, and the same delivery of the property that was made under the oral contract of sale continued under the written bill of sale. If the prior delivery was good, no further delivery was required. Shurtleff v. Willard, 19 Pick. 210; Lake v. Morris, 30 Conn. 201. At the close of the testimony, appellant requested the court to take the case from the jury, and direct a verdict in his favor. This the court refused to do, but directed a verdict in respondent's favor. The case turned upon the question of delivery, and the court ruled that, under the undisputed facts, there was a legal delivery. This is alleged as error, and to that point appellant's main argument is directed. The property in controversy consisted of buggies in what the witnesses call a “knock-down” condition, meaning that the various parts were in the boxes and crates in which such property is usually shipped. The delivery consisted in taking respondent's agent into the warehouse where the property was stored, showing it to him, and locking the warehouse, and giving him the key. A question of evidence arises at this point also. In the warehouse where the buggies were stored was a large amount of other property, (farm machinery principally,) which had formerly belonged to respondent's vendors, and which they had, a few days prior, transferred to one of their creditors, and had also given to such creditor a key to the warehouse. Appellant offered to prove that, by agreement between the vendors and such creditor, the creditor was to have exclusive control of the warehouse after the key was delivered to him. This evidence the court excluded, and, we think, properly. If such agreement had in fact been made and carried out, and if such creditor had exclusive control of and access to said warehouse, holding the property therein that had not been conveyed to him simply as a gratuitous bailee for the owners, it may be that, upon a subsequent sale of such property by the owners, no delivery that would be good as against existing creditors could be made without notice to such bailee, and his consent either to relinquish to the purchaser or to hold as his bailee. Some of the cases would seem to so hold. See Hildreth v. Fitts, 53 Vt. 684;Hallgarten v. Oldham, 135 Mass. 1;Campbell v. Hamilton, 63 Iowa, 293, 19 N. W. Rep. 220. But it is unquestioned in this case that respondent's vendors did have access to the warehouse, and had possession of a key thereto, and unlocked the warehouse, and pointed out the property in controversy to respondent's agent, and subsequently locked the building, and gave such agent the key. Nor is it questioned that at the same time the agent of the party to whom the farm machinery had been sold held a key to the building, and had access thereto. If respondent's vendors were violating any...