Simons v. Daly

• Decision Date: 28 April 1903
• Citation: 72 P. 507,9 Idaho 87
• Parties: SIMONS v. DALY
• Court: Idaho Supreme Court

72 P. 507

9 Idaho 87

SIMONS v. DALY

Supreme Court of Idaho

April 28, 1903

SALE OF PERSONAL PROPERTY-DELIVERY AND POSSESSION.-1. A transfer of personal property is attacked as fraudulent under section 3021 of the Revised Statutes of 1887 on the grounds that it was not "accompanied by an immediate delivery and followed by an actual and continued change of possession of the things transferred." Evidence examined, and held sufficient to support a verdict and judgment upholding such transfer. 2. The determina- tion as to what constitutes "immediate delivery" and "actual possession" is purely a question of fact, to be determined by the jury from all the evidence in each particular case. 3. Where, after examination of the evidence on appeal, the appellate court would hesitate before either saying there is or there is not sufficient evidence to sustain the verdict, the judgment will not be disturbed.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed, with costs.

Hawley & Puckett and Wood & Wilson, for Appellants.

"The statute requires such a change as to preclude the hazard of the seller deriving a false credit from the continuance of his apparent ownership." (Lesem v. Herriford, 44 Mo. 325.) We submit that the case at bar is upon all-fours with the Missouri cases, and if the decisions there were correct, the same rule applies here. It is not enough that there is an actual delivery, and an actual change of possession between vendor and vendee, so long as the property without legal excuse is so placed back into the same condition and the same apparent relation to the vendor that there is no such manifest and continued change of possession as would indicate to the world that there has been a change of title. (Harkness v. Smith, 3 Idaho 221, 28 P 423; Norton v. Doolittle, 32 Conn. 405; Lawrence v. Burnham, 4 Nev. 361, 97 Am. Dec. 540; Wright v McCormick, 67 Mo. 426; Dean v. Walkenhorst, 64 Cal. 78, 28 P. 60; Godchaux v. Mulford, 26 Cal. 316, 85 Am. Dec. 178; Bassenger v. Spangler, 9 Colo. 175, 10 P. 809; Green v. Bonne, 53 Cal. 254; Hesthal v. Myles, 53 Cal. 623.) The delivery must be made of the property, the vendee must take the actual possession, the possession must be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee. It must be such as to give evidence to the world of the claims of the new owner. (Stevens v. Irwin, 15 Cal. 507; Kelly v. Murphy, 70 Cal. 563, 12 P. 467; Bunting v. Saltz, 84 Cal. 172, 24 P. 167; Etchepare v. Aguirre, 91 Cal. 295, 25 Am. St. Rep. 180, 27 P. 668; 14 Am. & Eng. Ency. of Law, 290, and cases cited under note 3; Thompson v. McGreal, 10 Tex. 393; Edrington v. Rogers, 15 Tex. 188; Pettibone v. Stevens, 15 Conn. 19, 38 Am. Dec. 57; Lavette v. Sage, 29 Conn. 589; Redfield v. Buck, 35 Conn. 328, 95 Am. Dec. 241; Brady v. Barnes, 42 Conn. 522; Upton v. Tribilcock, 13 Nat. Bank. Reg. 181.) Merely taking possession is not all that is required, even though that possession be bona fide. (Lloyd v. Williams, 6 Colo. App. 157, 40 P. 244.) The change of possession required to uphold a transfer of a debtor's property as against creditors must be open and notorious, rendering such change of possession evident and visible. (Crampton v. Tarbell, F. Cas. No. 3349; Mosgrove v. Harris, 94 Cal. 165, 29 P. 490; Gillett v. Stoddard, 30 Ill.App. 231; State ex rel. Pierce v. Merritt, 70 Mo. 275; State ex rel. Smith v. Flynn, 66 Mo.App. 373; Weeks v. Preston, 53 Vt. 57; Comly v. Fisher, Taney, 121, F. Cas. No. 3053; Nuckolls v. Pence, 52 Iowa 581, 3 N.W. 631.) Failure on the part of the vendee to make such inquiries as a reasonably prudent man would make renders the transaction fraudulent. (Kellogg v. Aherin, 48 Iowa 299; Hole v. Creamer, 34 N. J. Eq. 181; Adler-Goldman etc. Co. v. Hathcock, 55 Ark. 579, 18 S.W. 1048; Buffum v. Jones, 144 Mass. 29, 10 N.E. 471; Garahy v. Bayley, 25 Tex. Supp. 294.)

J. H. Richards, G. M. Parsons, Charles M. Kahn and W. E. Borah, for Respondents.

Whether the transfer of the goods was bona fide or fraudulent is a question of fact for the jury. (Benjamin on Sales, 2d ed., sec. 485; Hesthal v. Myles, 53 Cal. 623; Wait on Fraudulent Conveyances, 2d ed., sec. 254.) "Where the sole question is one of fact and the evidence is conflicting, the finding of the jury will not be disturbed." (Sears v. Flodstrom, 5 Idaho 314, 49 P. 11; Simpson v. Remington, 6 Idaho 681, 59 P. 360; Murphy v. Montandon, 4 Idaho 320, 39 P. 195; Sabin v. Burke, 4 Idaho 28, 37 P. 355; Reay v. Butler, 95 Cal. 206, 30 P. 209.) Every intendment is in favor of the judgment of the court of record, and until the contrary is made clearly to appear the appellate court is bound to suppose that it was based upon proper evidence. In view, therefore, of the circumstances shown in this case we think it cannot be said that the evidence was insufficient," etc. (Stratton v. Burr (Cal.), 54 P. 735; Claudius v. Aguirre, 89 Cal. 501, 26 P. 1077; Byrnes v. Moore, 93 Cal. 393, 29 P. 70; Porter v. Bucher, 98 Cal. 454, 33 P. 335; Tuckwood v. Hanthorn, 67 Wis. 326, 30 N.W. 710.) In any event, the evidence on the question of change of possession and continued change of possession is conflicting; the jury passed upon the credibility of the witnesses, as they had a right to do, and their verdict cannot be disturbed so far as this feature of the case is concerned. (Ford v. Chambers, 28 Cal. 13; Grady v. Baker, 3 Dak. 296, 19 N.W. 417; Murphy v. Braase, 3 Idaho 544, 32 P. 208; Packard v. Densmore, 11 Cush. 282; Russell v. O'Brien, 127 Mass. 349; 14 Am. & Eng. Ency. of Law, 376 (5).) "Where a debtor conveys property to his brother to whom he is indebted and the consideration is not shown to be inadequate there is no fraud as to creditors." (Krippendorf v. Trenoweth (Colo. App.), 64 P. 373; Cecna v. Nimmick, 113 Pa. 70, 4 A. 193; Howe v. Johnson, 117 Cal. 37, 48 P. 978; Tuckwood v. Hanthorn, supra; Williams v. Lerch, 56 Cal. 330; Morgan v. Miller, 62 Cal. 492.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

The facts are sufficiently stated in the opinion.

AILSHIE, J.

Plaintiff commenced his action in the lower court against the defendants, charging them with wrongfully and unlawfully taking from the possession of plaintiff, on June 15, 1901, a stock of merchandise, together with store fixtures, of the value of $ 10, 050; and defendants are further charged with the conversion of said property to their own use. Defendants answered, denying that any of said merchandise of fixtures was ever the property of plaintiff, but alleged that the same was, at the time of the seizure thereof by the defendant Daly as sheriff, the property of one Ad. M. Simons. Defendants then plead, in justification of the seizure of the said property by the defendant Daly as sheriff, certain judgments against Ad. M. Simons amounting to something over $ 5,000, and allege the seizure and sale of said property under and by virtue of executions issued upon said judgments and for the collection thereof. The cause went to trial with a jury, and a verdict was returned in favor of plaintiff, assessing his damages at $ 7,000, and judgment was entered accordingly. Defendants moved for a new trial, and their motion was denied. From the judgment and order refusing a new trial, defendants appeal.

Briefly stated, the leading facts in the case are as follows: On May 14, 1901, Ad. M. Simons, a brother of plaintiff herein, was and for a long time prior thereto had been, conducting a cigar and tobacco store at No. 807 Main street in Boise City, under the name of "Ad. M. Simons & Co." William Simons, the plaintiff, had been working for his brother for some time, and was familiar with all the business and stock on hand. On the date last named, what is claimed by respondent to have been a sale to him of the entire stock and business of "Ad. M. Simons & Co." took place. The father of these two brothers held a promissory note against Ad. for $ 6,000, and, a short time before this sale was made, gave the note to plaintiff as a present. Plaintiff gave his brother Ad. this note in payment for $ 6,000 for the stock of goods and fixtures, and agreed to pay him the further sum of $ 3,000 cash on demand in full payment for the property. A bill of sale was duly executed and delivered for all the property in question, and about the twenty-fifth day of May, 1901, the balance of $ 3,000 was paid. No inventory of the property was taken, but, on the next day after the bill of sale was executed, the keys to the store and all books and accounts were turned over to plaintiff, and the balance of cash on hand at the bank was transferred to him, and he conducted the business thereafter under the name of "Ad. M. Simons Co., Successors." Ad. left the same day for San Francisco, and was gone two or three weeks. None of the signs were changed on the store, except that in the store and in front of the office, where a large sign had hung bearing the name, "Ad. M. Simons & Co.," a new sign was placed, bearing the name, "Ad. M. Simons Co., Successors." A rubber stamp was procured the day after the sale, bearing the new name adopted, and the stationery was stamped accordingly in red ink, and checks, orders, etc., were signed in the same manner. Plaintiff explains the failure to take an inventory by saying that he was familiar with the entire stock, and already knew what his brother had on hand. Edmond Salmon, who had previously been a clerk for Ad. M. Simons, continued to clerk for plaintiff, and testifies that he knew nothing of the sale, and supposed that he was still working for Ad. M. Simons until the goods were seized by the sheriff. At the same time, however, he admits noticing the new sign and stationery. Plaintiff testifies that ...