Shaul v. Harrington

• Decision Date: 14 March 1891
• Citation: 15 S.W. 835,54 Ark. 305
• Parties: SHAUL v. HARRINGTON
• Court: Arkansas Supreme Court

15 S.W. 835

54 Ark. 305

SHAUL v. HARRINGTON

Supreme Court of Arkansas

March 14, 1891

APPEAL from Lee Circuit Court, M. T. SANDERS, Judge.

Action of trover by the State for the use of Richard Shaul against V. M. Harrington, sheriff, and his official bondsmen for property taken under writs of attachment in favor of the creditors of John Campbell.

Shaul's statement of the controversy is substantially as follows. He sold Campbell two mules and a wagon and harness on credit. He says Campbell brought the property to him, stated that he was unable to pay for them, and offered to rescind the sale and return the property. To this he agreed. Thereupon Campbell remarked to him, at the same time pointing to the property which was in their presence and only few feet distant "There are the mules, wagon and harness, Mr. Shaul; I have brought them up here to-day for you, and you can now take them." At the same time Campbell instructed the driver of the wagon to release the property. Shaul immediately walked to his store, forty or fifty yards distant, and credited Campbell's account with the purchase price. Before Shaul had taken possession of the property Campbell proposed to rent it for a definite period of time. Shaul accepted the proposition and permitted him to take it home with him.

On the contrary, Campbell denied that he ever cancelled the sale or offered to deliver the property to plaintiff.

The court instructed the jury as follows: "The jury are instructed that a sale of personal property is not complete and is of no avail against subsequent purchasers or attaching creditors, without an actual delivery by the vendor to the vendee; and if they find from the evidence that there was no actual delivery and visible and substantial change of possession from Campbell to plaintiff, then their verdict should be for the defendants."

From a verdict and judgment in defendant's favor plaintiff has appealed.

Reversed and remanded.

James P. Brown for appellant.

1. The testimony of Blount tended to corroborate Shaul, and should have been admitted as part of the res gestae. 48 Ark. 333.

2. Manual delivery of wagons and mules is not necessary to make a sale complete. 19 Ark. 566. When the purchase money is paid at the time of the purchase, delivery of the property is not necessary. 8 Ark. 213. But a failure to deliver is not fraud per se, and is, at best, only a circumstance in proof of fraud which may be explained. Benjamin on Sales, sec. 738 note 58 (4th ed.); 7 Ark. 197; ib., 269; 23 ib., 121; 18 id., 123; 35 id., 190. The case in 47 Ark. 210, is peculiar in its facts and extreme in its conclusions of law, but it is different from this case. See Benj. Sales, p. 643.

E. D. Robertson and McCulloch & McCulloch for appellees.

An actual delivery of chattels is essential to complete a sale thereof, as against subsequent purchasers from, or attaching creditors of, the vendor. 47 Ark. 210; 1 S.W. 707. This court has adoped the policy that an actual and visible delivery of chattels is essential to complete a sale. Cases supra; 32 Conn. 405; 20 id., 23. The testimony failed to establish proof of delivery, and did not tend to show a delivery. 97 Am. Dec., 340, 348, and note, 345. The property in suit was capable of actual manual delivery; and when this is true, constructive or symbolical delivery is not sufficient. Ib. See also 76 Am. Dec., 500; 49 id., 316; 9 N.H. 137; 32 Am. Dec., 341. The agreement to pay rent does not change the rule. 3 N.H. 415; 14 Am. Dec., 375. See also 2 Aiken, 115-16 Am. Dec., 686; 70 Mass. 307; 132 Mass. 233; 48 Conn. 258. The evidence of Blount was properly excluded. 48 Ark. 333. The time elapsed was not short enough to bring it within the rule of res gestae. Ib.

OPINION

COCKRILL, C. J.

The rule that retention of possession of personal property by the vendor raises a conclusive presumption of fraud has never prevailed in this State. This court has persistently held that continuance of possession by the vendor is in effect only a circumstance indicating fraud. Valley Distilling Co. v. Atkinson, 50 Ark. 289, 7 S.W. 137. The rule is frequently stated to be that, while constructive delivery is always sufficient to pass title as between vendor and vendee, nothing but actual delivery, where that is practicable, will be sufficient to pass the title as against attaching creditors. 2 Schouler, Personal Property, sec. 395; note 97 Am. Dec., 340; Bigelow on Fraud, 327-8, chap. 13, sec. 1. But, in order to make the statement of the rule of general application where the question of fraus vel non is one of fact for the jury, accuracy requires this addition to it, viz.: The failure to make actual delivery raises only a rebuttable presumption of fraud. Puckett v. Reed, 31 Ark. 131. If the vendor is left in possession under an executory contract to sell, the property may be seized for his debts, although the contract for sale was made in good faith and upon a valuable consideration. To execute the contract, something in the nature of delivery is essential. Again, when, by the contract of sale, the vendor is required, not merely to prepare the goods for removal by the vendee, but to make delivery by deposit at a designated place before the sale is complete, or when delivery is necessary to take the case out of the statute of frauds, the failure to make actual delivery prevents the passing of the title, and leaves the property subject to be seized for payment of the vendor's debts. The case of Davis v. Meyer, 47 Ark. 210, 1 S.W. 95, seems to embrace both of the latter features; consequently it was correct to hold that actual delivery to the first vendee was essential to give him title against a subsequent purchaser from the vendor in possession. But to hold that actual and visible possession by the vendee is essential to his title in every case where the articles sold are capable of manual delivery, would be in effect to make the continuance of possession by the vendor fraud per se, and so allow no exculpatory explanation by the vendee. In Twyne's case, which forms the basis of all the learning on this subject, there was no visible or manual delivery of the property, and the doctrine there established applies to cases of retained possession as distinguished from acquired possession. But in England, where the doctrine of that case is followed and where the rule, as established by later cases, is not more lenient than ours, the retention of possession is no more than a badge of fraud. Benjamin on Sales, sec. 485.

An examination of the cases will show that a legal delivery, and not a visible change of possession, is all that is demanded to protect the vendee's title.

In Cocke v. Chapman, 7 Ark. 197, a bill of sale of a slave, who had escaped from his master and was at large, was held to pass the title against an attaching creditor who caused him to be seized before the vendee acquired actual possession. The constructive delivery and possession which the law implies in such a case was considered sufficient. In Field v Simco, 7 Ark. 269 there was a complete oral contract of sale of chattels in the hands of a bailee who was notified of the sale. The property was seized by a creditor of the...