Trousdale v. Winona Wagon Co.
| Decision Date | 12 November 1913 |
| Parties | C. H. TROUSDALE, Appellant, v. WINONA WAGON CO. et al., Respondents |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.
Action to recover possession of personal property. Judgment for defendant. Plaintiff appealed. Reversed.
Reversed and remanded. Costs awarded to appellant. Petition for rehearing denied.
Ed. R Coulter, for Appellant.
No particular act or formal ceremony is necessary to make a delivery; any act with the intention to transfer possession and dominion is sufficient. (35 Cyc. 187.)
There may be a complete delivery although the goods remain in the possession of the seller, if they are marked and set aside for the buyer. (35 Cyc. 192.) Especially if the goods are marked as belonging to the purchaser. (Robinson v Berkey, 111 Iowa 550, 82 N.W. 972.)
If the goods are specific, whether the contract of sale is executed or executory depends solely on the intention of the parties. (Carlson v. Crescent Woodenware & Box Mfg. Co., 20 Idaho 794, 120 P. 460; Idaho Implement Co. v Lambach, 16 Idaho 497, 101 P. 951.)
The most that is demanded is that there shall be such a delivery and change of possession as may be practicable in view of the character and situation of the property, and very slight acts will be sufficient where the sale is in good faith. (Stinson v. Clark, 6 Allen (Mass.), 340; 35 Cyc. 308.)
The question as to whether or not there has been a sufficient delivery and change of possession is ordinarily one for the jury. (35 Cyc. 310; Carlson v. Crescent Woodenware & Box Mfg. Co., supra; Idaho Implement Co. v. Lambach, supra.)
Respondents are estopped from claiming title to this property as against an innocent purchaser who obtained the same in due course of business at retail from the apparent owner, the Roy White Company. (Peasley v. Noble, 17 Idaho 686, 134 Am. St. 270, 107 P. 402, 27 L. R. A., N. S., 216.)
Lot L. Feltham, for Respondents, files no brief.
This is an appeal from a judgment of nonsuit against the plaintiff. The action was commenced in claim and delivery for the recovery of a farm wagon. After plaintiff introduced his evidence, defendant moved for a nonsuit which was granted by the court. Judgment was thereupon entered dismissing the action.
The contention of appellant is that sufficient evidence was introduced to entitle his case to be submitted to the jury. The respondent in reply thereto and in support of the action of the trial court insists that the judgment should be sustained for two reasons: first, on account of a material variance between the pleadings and proofs; and, second, insufficiency of the proofs to make a prima facie case. The contention made under the first ground is that the complaint alleged that the wagon which was sought to be recovered was a "One 2 3/4 inch Winona wagon complete with long or grain box or bed," while the proof showed that it was a three-inch Winona wagon. It is true that the evidence described a different wagon from the one described in the pleading, but this was not such a variance as to mislead and prejudice the defendant. The court properly allowed the plaintiff to amend his complaint to conform with the proofs. (Secs. 4225 and 4226, Rev. Codes; Pennsylvania etc. Min. Co. v. Gallagher, 19 Idaho 101, 112 P. 1044; Maw v. Coast Lumber Co., 19 Idaho 407, 114 P. 9.) Had the defendants requested it and shown the necessity therefor, the court would undoubtedly have granted such a continuance as might have been necessary to enable them to secure any other or different proofs available for their defense that they did not have to meet the original description. (Sec. 4226, Rev. Codes.) This would not have afforded any ground for a nonsuit.
As a matter of fact, it appears from the record that the trial court granted the nonsuit on account of insufficiency of the evidence. The material facts shown are briefly as follows: The Roy White Co-operative Mercantile Co. was engaged in business at Weiser and purchased from the Winona Wagon Co. of Winona, Minn., a shipment of wagons under what is commonly designated a conditional sale contract. These wagons were not paid for. On about January 23, 1912, the appellant hauled to the town of Weiser a quantity of alfalfa seed, and after considerable negotiation sold the same to the Roy White Co. for the sum of $ 420, and took in payment therefor the wagon in controversy at the price of $ 135, and the company agreed to send appellant on the following week a check for the sum of $ 265 and to give him a credit on their books of $ 20, which was to be traded out in their store. The appellant was not going directly home from Weiser and was not prepared to take the wagon with him, so Roy White, manager of the Roy White Co., "went to the office and got a tag and marked on it 'Sold to C. H. Trousdale,' and fastened it to the wagon." He testified that he marked it in "big letters" and put it on the wagon. Appellant asked White if he could not leave the wagon there somewhere until he could attend to some business he had to see about and return with his team to take the wagon home. It was accordingly agreed to and the wagon was left labeled as above indicated. Soon after this transaction the Roy White Co. failed and a receiver was appointed to take charge of the business and property of the company. Immediately thereafter the Kerr Hardware & Implement Co. of Boise, which was the Idaho representative of the Winona Wagon Co., sent an agent to Weiser and demanded possession of this wagon and were informed that the wagon belonged to Trousdale, but they insisted on taking the wagon and did take it from the possession of the receiver, claiming it as the property of the Winona Wagon Co. Appellant thereupon commenced this action. The proofs show substantially the foregoing facts.
The clause of the contract under which the Winona Wagon Co. claims this wagon and over which the chief controversy arises is clause No. 8 of the contract, which reads as follows:
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