O’Farrel v. McClure

• Citation: 5 Kan.App. 880,47 P. 160
• Parties: O’FARREL v. McCLURE et al.
• Decision Date: 05 December 1896
• Court: Court of Appeals of Kansas

47 P. 160

5 Kan.App. 880

O’FARREL v. McCLURE et al.

Court of Appeals of Kansas, Northern Department, Central Division

December 5, 1896

Syllabus

1. Where a petition in replevin alleges ownership and right of possession in the plaintiff, and wrongful detention by the defendant, a general verdict finds all these issues for the plaintiff, and is proper. Upon such a petition and verdict, a judgment like the one in this case may properly be entered.

2. In a contract of sale of personal property, the intent of the parties controls, and, if they intended a present vesting of title, the title may, in fact, pass at once to the purchaser although the actual delivery is to be made subsequently; and whenever a dispute arises as to the true character of an agreement, the question of intent is rather one of fact than of law; and the finding of a jury, when sustained by the evidence upon this question, will not be disturbed upon review. Kneeland v. Renner, 43 P. 95, 2 Kan.App. 451.

Error from district court, Cloud county; F. W. Sturges, Judge.

Action by H. C. McClure and J. C. Mason partners as H. C. McClure & Co., against Patrick O’Farrel. Judgment for plaintiffs. Defendant brings error. Affirmed.

Crans & Savary, for plaintiff in error.

J. W. Sheafor and L. A. Rigby, for defendants in error.

OPINION

GILKESON, P. J.

Patrick O’Farrel, plaintiff in error, was on January 20, 1892, the owner of some 70 or 80 head of hogs, of various ages and conditions, about 38 head of which had attained the age of two years, and were fit for market. The defendants in error desired to purchase some of these hogs, and with that object in view, on that day, being Thursday, Mason called upon O’Farrel, and examined the hogs in question, agreed upon the price for 35 head, to wit, $400, and, upon the suggestion of O’Farrel, pointed out the hogs he desired, or, rather, he pointed out 3 head of the 38 which he did not want and would not take, and thereupon paid to O’Farrel the sum of $20. It was at this time agreed that the 35 head selected by Mason should remain in the corral where they then were until the following Saturday, when Mason was to take them away. On the next day, Friday, and after having consulted with his partner, McClure, he again called upon O’Farrel, and there was some conversation as to the hogs remaining in the corral until the following Monday. On Sunday, O’Farrel called upon McClure, and had a conversation with him about these hogs; and, upon the following Monday, McClure and Mason, with hired help, went to O’Farrel, for the purpose of taking the hogs to ship them, he tendering to O’Farrel the balance due upon the purchase price of the hogs, which O’Farrel refused to receive, and refused to deliver the hogs. Afterwards Mason and McClure brought an action in replevin for the recovery of the hogs. O’Farrel gave a redelivery bond, and retained possession of them, and subsequently disposed of them. In that action the jury returned a general verdict in favor of McClure and Mason. No special findings were asked or made. It is of this judgment and verdict rendered thereon that O’Farrel complains, and brings the case here on error for review.

The issues in this case are purely of fact, and it is admitted by the plaintiff in error that the rights of the parties in this case hinge on what passed between Mason and O’Farrel on Friday, he contending that the transaction of Thursday did not amount to a sale, but was merely an agreement to sell and it was not to be consummated until the following Saturday, and that, by the transactions had between them on Friday, the contract of sale was abrogated. As to what really happened on Friday, there is some conflicting testimony; O’Farrel testifying, in substance, that when Mason asked him if he would keep the hogs for him until Monday, and feed them for him, he told him, "If I feed them until Monday, I shall feed them for myself, as my own hogs." This is denied by both McClure and Mason. O’Farrel admits that he did not tender back the $20 at the time of the conversation with Mason on Friday, but claims that he did tender it back at the time of the...