Rosenbaum v. Hayes

• Citation: 86 N.W. 973,10 N.D. 311
• Decision Date: 14 June 1901
• Court: United States State Supreme Court of North Dakota

86 N.W. 973

10 N.D. 311

MORRIS ROSENBAUM, et al v. JERRY HAYES

Supreme Court of North Dakota

June 14, 1901

Appeal from District Court, Morton County; Fisk, J.

Action by Morris Rosenbaum and others against Jerry Hayes, sheriff. Judgment for plaintiffs, and defendant appeals.

Affirmed.

James B. Kerr, Alexander Hughes and George W. Newton, for appellants.

This case has been twice before the court. Rosenbaum v Hayes, 5 N.D. 476; Rosenbaum v. Hayes, 8 N.D 461. Possession of the sheep, by the plaintiffs, upon the range during the summer would not be sufficient to create a lien in favor of the plaintiffs as factors for the reason that a factor has a lien only upon such property of his principal as comes into his hands in the ordinary course of business as a factor. 2 Kents Com. 637; 2 Parsons Cont. (8 Ed.) 99; Dixon v. Stansfield, 10 C. B. 399; Stevenson v. Blakelock, 1 M. & S. 535; § § 4836, 4134, 4353, Rev. Codes; § § 4442, 3791, 4010 Comp. Laws; Whart. Agcy. § 735; 3 A. & E. Enc. L. 318 Note 2. A factor must be a specialist pursuing the particular business as a trade. One who undertakes to sell a piece of goods out of his line of business is not, therefore, a factor. Bank v. Jones, 4 N.Y. 497; Benjamin on Sales, 38; Thatcher v. Moors, 134 Mass. 156. Possession is essential to create, and essential to preserve a lien at common law. The right begins and ends with possession. Jones on Liens, § 21; Bank v Janin, 46 La.Ann. 1001; Hinchman v. Lincoln, 124 U.S. 38. Conceding that all the testimony offered by the plaintiffs as to the transaction on the prairie is true, yet it is clear that there was no such change of possession as would pass the title between the parties on sale. Hinchman v. Lincoln, 124 U.S. 38; Shindler v. Houston, 1 N.Y. 261; Edwards v. Meadows, 71 Ala. 42; Hollenbeck v. Cochran, 20 Hun. 416. Any delivery upon the prairie on August 6th conferred no rights for the reason that the transaction was in violation of the Sunday law. § § 6241, 6242, 6245, Comp. Laws; Smith v. Wilcox, 24 N.Y. 353; Link v. Clemens, 7 Blackf. 479; Reynolds v. Stevenson, 4 Ind. 619; Cincinnati v. Rice, 15 O. St. 225; Note 14 L. R. A. 192; Smith v. Foster, 41 N.H. 215; Moseley v. Hatch, 108 Mass. 519; Finley v. Quirk, 9 Minn. 194; Durant v. Rhenier, 26 Minn. 302, 4 N.W. 610; Brackett v. Edgerton, 14 Minn. 174; Gibbs, Etc. Co. v. Brucker, 111 U.S. 597, 601; Vinz v. Beatty, 61 Wis. 645. The transfer was fradulent and void as against creditors because not accompanied by and followed by an actual and continued change of possession. § 4657 Comp. Laws; Conrad v. Smith, 2 N.D. 412; McFarland v. Wheeler, 26 Wend. 467. The amendment of § 4657, Comp. Laws by Chap. 78 of the Laws of 1893, which changes the rule of presumption from a conclusive to a rebuttable presumption, only relates to sales and not to liens. The policy of the law which requires a visible possession to support a lien is found in the re-enactment of § 4345, Comp. Laws as § 4698, Rev. Codes. Newell v. Wagness, 1 N.D. 62; Conrad v. Smith, 2 N.D. 408; Morrison v. Oium, 3 N.D. 76; Bank v. Janin, 46 La.Ann. 1001; McFarland v. Wheeler, 26 Wend. 467; Flanagan v. Wood, 33 Vt. 327. The claim of the plaintiffs against the Beasleys has been assigned, and any lien is extinguished. The lien or right to a lien cannot be assigned. Jones on Liens, § 982; Tewksbury v. Bronson, 48 Wis. 581, 4 N.W. 749; Gage v. Allison, 2 Am. Dec. 682; Ames v. Palmer, 66 Am. Dec. 271; Holly v. Huggeford, 19 Am. Dec. 303. The recovery must be limited to the special interest of the plaintiffs in the property. Tewksbury v. Bronson, 48 Wis. 581, 4 N.W. 749; Suth rland on Damages, § 1160; Deal v. Osborne, 42 Minn. 102; Wheeler v. Train, 4 Pick. 168. By § 229 of the Montana statute, the mortgages executed at Chicago were fraudulent. They were a part of the same transaction with the execution of the paper at Dickinson. The law in force at the time and place when and where a contract is entered into, and where it is to be performed, enters into and becomes a part of it. Walker v. Whithead, 16 Wall. 314; 21 L.Ed. 57; Ogden v. Saunders, 12 Wheat. 213; 6 L.Ed. 606; Cook v. Moffat, 5 How. 312, 12 L.Ed. 167; Bishop. Cont. 554, 567. The statute law of another state will be enforced, if not against public policy, when such law has entered into a contract. Bucher v. Gregory, 9 Mo.App. 102; Cobb v. Griffith, 12 Mo.App. 130. The repeal of § 4657, Comp. Laws of North Dakota, by Chap. 78, Laws of 1893, did not repeal the statutes of Montana. The Montana statutes were the law of the contract and could not be changed so as to affect the note in question, or Gans' rights thereunder, even by the legislature of Montana. Conrad v. Smith, 6 N.D. 337; Bosher v. Berry, 6 Mont. 448; Harmon v. Bank, 18 Mont. 525; Merchants Nat. Bank v. Greenhood, 16 Mont. 395, 453. The Montana statute forming a part of the contract, this court should enforce it. Flash v. Conn., 107 U.S. 371, 381; 29 L.Ed. 966; Jessup v. Carnegie, 80 N.Y. 441.

Ball, Watson & Maclay, A. B. Melville and J. G. Campbell, for respondents.

It is an undisputed fact in the case that it was the custom in 1893, in the shipment of sheep to eastern markets, to feed them in transit on the range. This fact is sufficient answer to appellant's contention that the sheep did not go into plaintiffs' possession in the usual course of business. A factor may prepare as well as keep property for sale on the market. Bank v. Schween, 127 Ill. 573; State v Thompson, 120 Mo. 12; Shaw v. Ferguson, 78 Ind. 547, 554. The delivery of possession was sufficient. Sumner v. Hamlet, 29 Mass. 26; Cady v. Zimmerman, 20 Mont. 225; Dodge v. Jones, 7 Mont. 121; Rice v. Austin, 17 Mass. 197; Williams v. Lerch, 56 Cal. 334 Montgomery v. Hunt, 5 Cal. 369; Goodwin v. Goodwin, 90 Me. 23; Brown v. Wade, 42 Ia. 647; Garretson v. Hackenberg, 144 Pa. 107; Bell v. McClosky, 155 Pa. 319; Webster v. Anderson, 42 Mich. 554; Tunell v. Larson, 39 Minn. 269; Stanley v. Robbins, 36 Vt. 422; Stevenson v. Clark, 40 Vt. 624; Godchaux v. Mulford, 26 Cal. 316, 324 et seq.; Parks v. Barney, 55 Cal. 239; Humphreys v. Harkey, 59 Cal. 626; Morgan v. Miller, 62 Cal. 492; Meads v. Lasar, 92 Cal. 221; Porter v. Bucher, 98 Cal. 454; O'Brien v. Ballou, 116 Cal. 318; Adams v. Weber, 117 Cal. 42; Williams v. Borgwardt, 119 Cal. 83; Asbill v. Standley, 31 P. 738; Clute v. Steele, 6 Nev. 335; State v. Flynn, 56 Mo.App. 236; McGuire v. West, 43 S.W. 458; Grenthal v. Lincoln, 68 Conn. 384; Warner v. Carlton, 22 Ill. 424; Grady v. Baker, 3 Dak. 298. The transactions at Dickinson on August 6th amounted to a sufficient change of possession of the sheep to satisfy the requirements even of the Montana statutes. Cady v. Zimmerman, 20 Mont. 225; Dodge v. Jones, 7 Mont. 121. The Montana statute was not such a part of the substantive law as to prevent the legislature from altering it so as to affect contracts made prior to such amendment so long as the parties to such contracts had obtained no specific right or title to the property affected by the amendment, or any lien upon it by attachment, or otherwise. Conrad v. Smith, 6 N.D. 337. The bill of lading, freight receipts and way bills were admissible upon the question of the intent of the parties, as well as upon the question of delivery of possession. It was not necessary to show the authority of the railroad agent to issue them either as against the company or a third person. Hanson v. Ry. Co., 41 N.W. 529; Brooks v. Ry. Co., 21 A. & E. R. R. Cas. 64. They were admissible even though not authorized. Prince v. Ry. Co., 101 Mass. 542; Bryan v. Nix, 4 M. & W. 775. The transfer of plaintiffs' claims to Rosenbaum Bros. & Co., was proved in cross-examination, over objection, and was outside the line of examination in chief. Kaeppler v. Bank, 8 N.D. 406. This transfer did not include the claims in litigation. But even if established that plaintiffs are not now the owners of the cause of action, the case should continue in the name of the original party. § 5234, Rev. Codes; Johnson v. King, 58 N.W. 1105; Moss v. Shear, 30 Cal. 469; Camerillo v. Fenton, 49 Cal. 203; Alexander v. Overton, 72 N.W. 212. The factor's lien law descends to and can be enforced by the personal representative of the factor, or by his assignee in insolvency. This is enough to show that the right is not a purely personal right. 10 A. & E. Enc. L. (2 Ed.) 687, Notes 2 and 3. No such important distinction exists between the factor's lien and other common law liens dependent upon possession as should differentiate them with respect to the right of assignability. Nash v. Mosher, 19 Wend. 431; Jones on Pledges, § 331; Sibley v. Willard, 17 N.W. 337; Tuttle v. Howe, 14 Minn. 145; Duncan v. Hawn, 37 P. 626; DeWitt v. Prescott, 16 N.W. 656. While the form of the present action is replevin, as the property has been sold and disposed of and cannot be returned to the plaintiff, an alternative judgment would be unnecessary and unavailing. Boley v. Griswold, 20 Wall. 486; Brown v. Johnson, 45 Cal. 76. The action is changed, so far as practical results are concerned, into an action for conversion. Brewster v. Carmichael, 39 Wis. 456; Cobbey on Replevin, § 852. The rights of all the parties were fixed at the time the defendant gave the redelivery bond and took back the sheep. Union Nat. Bank v. Moline, Milburn & Stoddard Co., 7 N.D. 219, 222. After suit is begun, when the rights of the parties have become fixed, an assignment will not destroy the right of action. Tuttle v. Howe, 14 Minn. 149. Assuming that the transfer to the corporation were proved, it would be a transfer in name only and not in substance. Under such circumstances the court will consider substance and not form. New York Bank Note Co. v. Bank Note Co., 50 N.Y.S. 1093, 1099. The taking of collateral security...