Nebeker v. Harvey

• Decision Date: 17 April 1900
• Court: Utah Supreme Court
• Parties: AQUILA NEBEKER AND E. A. SMITH, CO-PARTNERS DOING BUSINESS UNDER THE NAME OF NEBEKER AND SMITH, RESPONDENTS, v. GEORGE HARVEY, C. J. ANDERSEN, B. F. STEWART, AND WILLIAM B. HUFFMAN, APPELLANTS

60 P. 1029

21 Utah 363

AQUILA NEBEKER AND E. A. SMITH, CO-PARTNERS DOING BUSINESS UNDER THE NAME OF NEBEKER AND SMITH, RESPONDENTS, v. GEORGE HARVEY, C. J. ANDERSEN, B. F. STEWART, AND WILLIAM B. HUFFMAN, APPELLANTS

Supreme Court of Utah

April 17, 1900

Appeal from the Third District Court, Salt Lake County, Hon. A. N Cherry, Judge.

Action in replevin for certain cattle or their value, the complaint alleges that defendants wrongfully and unlawfully took the cattle from the possession of plaintiffs in Salt Lake City and County, and that after demand had been made, they unlawfully withheld such possession from the plaintiffs. From a judgment for plaintiffs, defendants appealed.

Affirmed.

Messrs Richards & Varian, for appellants.

Replevin in the cepit can not be maintained against any person who came lawfully into possession. A. and E. Ency. Law, Vol. 20 pp. 1060, 1061; Simmons v. Jenkins, 75 Ill. 482.

The action will not lie against one who never has been in the actual or constructive possession. Cobbey Replevin (1890), Secs. 132-65.

"Replevin can not be maintained in this commonwealth against a person who has no possession or control of the goods to be replevined; replevined goods can not be restored and returned to a person from whom they were never taken; and such person can not be made a defendant, sole or joint, in an action of replevin." Richardson v. Reed, 70 Mass. 441, 4 Gray 441; Hall v. White, 106 Mass. 600; Sweet v. Boyce, 134 Mass. 381; Cobbey Replevin, Secs. 432, 433, 461, 464; Gasdner v. Brown, Nov., 37 P. 240; De Priest v. Mc Kinstry, Neb. 56 N.W. 806.

It is submitted that there is no hard and fast rule of law that where property is sold to be paid for on delivery, such payment is a condition precedent to the title passing. Delivery is not essential to perfect a sale as between the parties. Danley v. Rector, 10 Ark. 211, 50 Am. Dec. 242; Wade v. Moffett, 21 Ill. 110; 74 Am. Dec. 79; Girdner v. Beswick, 69 Cal. 113; Elgee Cotton Cases, 22 Wall., 191.

James H. Moyle, Esq., and Frank K. Nebeker, Esq., for respondent.

All the court is now to determine is, whether there is evidence to support the verdict. There is abundant proof of detention, both in the pleadings and evidence, and we insist that the verdict should stand. 1 Black on Judgments, Sec. 101.

Both the unlawful taking and detention took place in Salt Lake City, but even if the taking had been in Kane County or Arizona, and the detention here, then the verdict should stand.

If the wrongful act of appellants had taken place in Arizona, then the action could have been brought wherever the defendant should be found in Utah. Steed v. Harvey, 18 Utah 367.

For under the code a complaint may have a double aspect, and the court may give judgment in accordance with the facts proven on either issue of the case. Stevens v. Mayor, etc., 84 N.Y. 304.; Hale v. Omaha National Bank, 49 N.Y. 631; Kuhn v. Mc Allister, 1 Utah 273.

It makes no difference what is the form of the action, or whether it is legal or equitable, or both. If the judgment comes within any issue of the complaint is all that is required. Kuhn v. Mc Allister, 1 Utah 273. Same case on appeal, Mc Allister v. Kuhn, 96 U.S. 87; Wade v. Hancock, 76 Va. 620; Black on Judgments, Vol. 1, page 161, Sec. 131, Note 26; Johnson v. Hathorn, 2d Abb. App. Dec., 465; Second Ed. Pomeroy's Remedies and Remedial Rights, 453.

This court has held that when a complaint can be construed in two ways, it must be given that construction which will support the complaint. Johnson v. Meagher, 14 Utah 436; Black on Judgments, Vol. 1, Sec. 100, page 108.

Where personal property is sold to be paid for on delivery, such payment is a condition precedent, and until it is made or waived, no title passes to the vendee. 6 Am. & E. Ency. of Law, 2d ed., 456, and Note 4, 457, and Note 1, with cases cited.

Benj. on Sales, 7th ed., 298, with cases cited on page 299.

Bartch, C. J., delivered the opinion of the court. MINER, J., concurs in the result. BASKIN, J., concurs.

OPINION

Bartch, C. J.

STATEMENT OF FACTS.

This is an action in replevin brought in Salt Lake County, to recover 208 head of cattle, or $ 2,200, their value. It is alleged in the complaint that the defendants wrongfully and unlawfully took the cattle from the possession of the plaintiffs in Salt Lake City and County, and that after demand made they unlawfully withheld such possession from the plaintiffs. In the answer it is averred that the defendants were the owners of the cattle; that "at the City and County of Salt Lake," the plaintiffs wrongfully caused the cattle to be taken from the possession of the defendants and detained them for two days; and that because of such wrongful taking and detention, the "defendants were obliged to keep and feed such cattle at the stock yards in Salt Lake City, Utah two days," at an expense of $ 133.72.

From the evidence it appears that the plaintiffs had a herd of cattle ranging in Coconina County, Arizona, and Kane County, Utah and that plaintiff Nebeker, on February 24, 1897, entered into an agreement with A. L. Stewart and B. F. Stewart, as follows:

"This is to certify that I have this day sold and contracted my entire brand of cattle branded N left rib, N left rib and X either hip, said cattle ranging in Coconina County, Arizona, and Kane County, Utah to B. F. Stewart and A. L. Stewart, to be delivered between March 20, 1897, and July 20, 1897, in bunches of three hundred head or more. Scattering cattle not delivered between these dates to be guessed or 'slumped' off.

Cattle are to be paid for at the rate of thirteen dollars per head. Calves of 1897 to be thrown in, and which are under the age of six months. Saddle horses to be thrown in after delivery of cattle.

The sum of thirty-seven hundred and fifty dollars ($ 3,750) is paid down in consideration of contract, and the amount of two dollars per head is to be deducted from the purchase price of thirteen dollars per head as cattle are delivered.

Said amount of two dollars per head is to be applied on the original payment of thirty-seven hundred and fifty dollars."

It appears that Nebeker had the cattle in charge, and transacted the business for himself and Smith, and there is evidence tending to show that B. F. Stewart subsequently transacted business respecting the cattle for himself and his brother, A. L. Stewart. Nebeker on being interrogated by defendant Harvey informed him that he had sold his cattle to the Stewart brothers, and afterward, on February 20, 1897, Harvey purchased of the Stewart brothers 2,000 head of cattle, which were to consist of those purchased from Nebeker, and other cattle. Thereafter, on April 24, 1897, Harvey made an indorsement on his contract with the Stewart brothers, as follows:

"I turn this contract to C. J. Anderson and M. B. Huffman on receipt of $ 7,000.

GEORGE HARVEY.

Have received $ 20 in currency on the above contract.

4-27/97. Received of C. J. Anderson check for $ 2,000 on Omaha.

4-26. Received check for Huffman and Rollins for $ 5,000, South Omaha, which consideration I turn this contract.

GEORGE HARVEY."

It appears that Nebeker was unable to deliver the cattle as rapidly as was expected by the appellants, and thereupon, on June 10, 1897, entered into another contract with B. F. Stewart for the sale of his cattle, in which the cattle were "to be counted as total number, 1,600 head," and the title to them was "to remain in Nebeker until payment in full." This contract, on motion of defendants, was excluded from evidence, but afterward evidence was admitted relating to it. After making this contract, B. F. Stewart informed his brother by letter respecting the transaction, and that he had "bought the cattle on range delivery on a basis of 1,600 head." There is evidence tending to show that B. F. Stewart was acting for himself and brother. After the making of this contract, Nebeker, it appears, informed Harvey, Huffman, and Anderson as to its contents, and that title to the cattle remained in him until they were paid for in full. Thereafter they accepted an order from B. F. Stewart conditionally. The order and acceptance are as follows: "Salt Lake City, July 23, 1897. Messrs. Huffman, Anderson, and Harvey: Please pay to Aquila Nebeker $ 2,197, balance due on cattle. B. F. Stewart. Order accepted when advance money paid by Harvey settled. Huffman, Anderson, and George Harvey."

It appears in evidence that this order was given to pay the balance due on the 1,600 head of cattle delivered to the Stewarts, and which included the 208 head sued for, and that it has never been paid. The cattle were shipped from the town of Milford to Salt Lake City, to be carried beyond the limits of the State. Nebeker, it appears, having failed to receive payment for the balance due him, intercepted them at Salt Lake City, and demanded the possession of the 208 head of cattle. Upon possession being refused, he brought this suit and obtained possession, but upon the defendants' executing a proper bond, the cattle were re-delivered to them. At the trial a verdict was returned in favor of the plaintiffs for the return of the property, and, if that could not be returned, then for the value thereof, which was fixed at $ 2,200, with interest. Thereupon judgment was entered for the value, and the defendants appealed.

After stating the facts as above. Bartch, C. J., delivered the opinion of the court.

The first question presented is one of jurisdiction. The appellants insist that the action was brought in the wrong county, and that therefore the court had no jurisdiction to try the cause. This question was raised for the first time on motion for a new trial, there having occurred no contention respecting it...