Thomas Manufacturing Company v. Foote
| Decision Date | 26 May 1891 |
| Citation | 48 N.W. 1019,46 Minn. 240 |
| Parties | Thomas Manufacturing Company v. P. H. Foote |
| Court | Minnesota Supreme Court |
Action brought in the district court for Big Stone county, to recover possession of 17 horse hay-rakes, made by plaintiff of the alleged value of $ 380, of which the plaintiff alleged itself to be "the owner and entitled to the immediate possession." The answer alleged that on October 24 1889, the rakes were the sole and absolute property of one Boyington, who on that day, being insolvent, made a general assignment for creditors to one Van Bogart, the assignment being filed the same day; that afterwards Van Bogart was removed, and defendant was appointed assignee in his place and duly qualified, and took possession of the assigned property, including the rakes in question. At the trial before Powers, J., it appeared that the rakes were delivered by plaintiff to Boyington under a written contract bearing date April 25, 1889, by the terms of which the plaintiff "bargains and agrees to sell" the property to Boyington at a price specified, payable November 1, 1889, and it is agreed that the title and ownership shall remain in plaintiff until full payment. This contract was not filed. There was evidence tending to prove that Van Bogart was a clerk in Boyington's store, and was present when the contract was made, and that he afterwards read it, and that he knew its contents at the time of the assignment. There was evidence that upon the making of the assignment Van Bogart took possession of the rakes, and, upon his removal, (which was on his own petition, stating his inability to furnish the necessary bond,) he delivered them to defendant. At the close of plaintiff's case a dismissal was ordered, on defendant's motion. The plaintiff appeals from an order refusing a new trial.
Order affirmed.
John B. & W. H. Sanborn, for appellant.
E. T. Young, for respondent.
The conditional contract entered into between this plaintiff and Boyington, of date April 25, 1889, not having been filed in the office of the clerk of the town in which Boyington resided, as required by Laws 1883, c. 38, § 2 amended, Laws 1885, c. 76, § 1, was absolutely void as to those creditors not having actual notice of the state of the title, when Boyington made the assignment under the insolvency act of 1881, October 24, 1889, at which time their rights attached to the property in dispute. Gen. St. 1878, c. 39, § 15; Dyer v. Thorstad, 35 Minn. 534 (29 N.W. 345.) The plaintiff, therefore, could not maintain its action, -- one of claim and delivery, -- under the statute, without showing actual notice or knowledge on the part of the creditors as to the true state of affairs, and that Boyington held possession of the plaintiff's goods solely under the contract of conditional sale. This assertion has not been controverted by the plaintiff at any time, but its position is that, as the testimony disclosed full knowledge of the existence of the contract and of the real...
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