S. Clark v. Shannon & Mott Co.
| Decision Date | 23 October 1902 |
| Parties | S. CLARK, Appellee, v. SHANNON & MOTT CO., Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.
ACTION in replevin for a stock of merchandise. Verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
Woodin Nichols & Ayres and C. E. Hunn for appellant.
Dale & Allen for appellee.
The plaintiff's agent went to the store of one Bartle & Susong to purchase a stock of goods belonging to the latter. The price was agreed upon, and Bartle & Susong executed and delivered a bill of sale of the goods to the plaintiff, and received $ 10 in part payment. After making this payment, the agent went out for the ostensible purpose of procuring the remainder of the price, leaving one Stivers in the store in some capacity to look after plaintiff's interest. Just how much control Stivers exercised over the property, and whether there was a technical delivery of the goods, is a matter of some dispute. After the transaction, and before the plaintiff's agent returned, Bartle & Susong, being indebted to defendant, gave to it an order on plaintiff for the unpaid balance of the agreed price of the goods. On presenting this order, defendant was informed that plaintiff had been garnished at the suit of another creditor of Bartle & Susong, and, returning to the latter, secured from them a chattel mortgage upon the stock, under which defendant caused the property to be seized, whereupon this action was instituted.
I. Even though the alleged sale of the stock to plaintiff had not been followed by any change in the actual manual possession yet, the price having been definitely agreed upon, a partial payment made and accepted, and a bill of sale made and delivered, the sale being made in bulk, leaving nothing to be done to designate or set apart the subject of the transaction, it is, to say the least, more than probable that the title passed, and the contract became enforceable against a subsequent purchaser with notice, as defendant confessedly is. In Wade v. Moffett, 21 Ill. 110 (74 Am. Dec. 79), Breese, J., says: "It is a general rule of the common law as to sales of chattels that, as between vendor and vendee, no actual delivery, symbolical or otherwise, is necessary; the completion of the bargain being all that is requisite to pass the title, though not the possession, until the price be paid or satisfactorily arranged." See, to the same effect. Welch v. Spies, 103 Iowa 389, 72 N.W. 548; Bank v. Studemann, 74 Iowa 104, 37 N.W. 112; Bank v. Reno, 73 Iowa 145, 34 N.W. 796; Bertelson v. Bower, 81 Ind. 512; Willis v. Willis' Adm'rs, 36 Ky. 48, 6 Dana 48; Gardner v. Howland, 2 Pick. 599; Shumway v. Rutter, 8 Pick. 443 (19 Am. Dec. 340); Hooben v. Bidwell, 16 Ohio 509 (47 Am. Dec. 386); Ricker v. Cross, 5 N.H. 570 (22 Am. Dec. 480); Lansing v. Turner, 2 Johns. 13; Briggs v. U. S., 143 U.S. 346 (12 S.Ct. 391, 36 L.Ed. 180); Rail v. Lumber Co., 47 Minn. 422 (50 N.W. 471); Wing v. Clark, 24 Me. 366; Hinde v. Whitehouse, 7 East, 558; 2 Kent Commentaries 492; 2 Blackstone, Commentaries, 448. A delivery of a bill of sale has often been held to operate as a delivery of the property. Fletcher v. Nelson, 6 N.D. 94 (69 N.W. 53); Cook v. Van Horne, 76 Wis. 520 (44 N.W. 767); White v. McCracken, 60 Ark. 613 (31 S.W. 882); Briggs v. U.S. supra; Gibson v. Stevens, 49 U.S. 384, 8 HOW 384 (12 L.Ed. 1123). And a transfer of title is not at all inconsistent with the fact that the seller retains the property under his control until the purchase price is paid. In such case he holds the property as bailee of the purchaser, with a lien thereon for the unpaid purchase price. Welch v. Spies, supra; Arnold v. Delano, 4 Cush. 33 (50 Am. Dec. 754); Burke v. Dunn, 117 Mich. 430 (75 N.W. 931); Safford v. McDonough, 120 Mass. 290; Crummey v. Raudenbush, 55 Minn. 426 (56 N.W. 1113). It is unnecessary, perhaps, to pursue this line of investigation, in view of the fact that the trial court instructed the jury, in substance, that, in order to defeat the lien of defendant's mortgage, they must find there was an actual delivery or change of the possession and control of the property at the time when the bill of sale and partial payment was made. By this instruction a greater burden was cast upon the plaintiff than would be indicated by the authorities above referred to. Of this, however, the defendant cannot complain, as the error, if any, tended to the prejudice of the other party alone. But even on the theory adopted by the court (which seems to be substantially the theory contended for by defendant), the question whether the transactions between the plaintiff and Bartle & Susong amounted to a delivery, and therefore a completed sale, was for the jury, under proper instructions of the court. 2 Mechem, Sales, section 967; Thompson Manufacturing Co. v. Smith, 67 N.H. 409 (29 A. 405); Merricks v. Davis, 65 Ill. 319; Tennent Shoe Co. v. Rudy, 53 Mo.App. 196; Sharpless v. Derr, 62 Mo.App. 359; White v. Pease, 15 Utah 170 (49 P. 416). And if, as is urged, the question of delivery or the passing of title is to be determined by the intention of the parties, that intention is also a fact for the jury to find. 1 Mechem, Sales, sections 501, 502. In short, upon either theory of the case the controversy is essentially one of fact, and, the fact having been found by the jury, and there being evidence to support the finding, this court cannot assume to determine it otherwise.
II. Defendant submitted five requests for instructions to the jury. Each of them is to the effect that,...
To continue reading
Request your trial