Turnbow v. Beckstead

• Decision Date: 01 April 1903
• Docket Number: 1377
• Parties: JOHN G. TURNBOW, Respondent, v. MARTIN A. BECKSTEAD and THE UTAH COMMERCIAL & SAVINGS BANK, a Corporation, Appellants
• Court: Utah Supreme Court

71 P. 1062

25 Utah 468

JOHN G. TURNBOW, Respondent, v. MARTIN A. BECKSTEAD and THE UTAH COMMERCIAL & SAVINGS BANK, a Corporation, Appellants

No. 1377

Supreme Court of Utah

April 1, 1903

Appeal from the Third District Court, Salt Lake County.-- Hon. S.W Stewart, Judge.

Action to recover the possession of fourteen hundred and thirty head of sheep, their wool and increase, or the value thereof. From a judgment in favor of the plaintiff, the defendants appealed.

AFFIRMED.

C. S Price, Esq., and Messrs. Bennett, Sutherland, Van Cott &amp Allison for appellants.

The transactions by which the sheep were delivered to Jones were sales and not bailments. We direct especial attention to the language of all of the contracts under which Jones received sheep from these various parties. Without exception they contain a covenant obligating Jones to "keep the old stock good," and in addition thereto he agrees either to pay a certain annual money consideration, or a designated quantity of wool and number of lambs annually for the possession and use of the sheep. We insist that all of the contracts are contracts of sale and not of bailment, and that upon delivery of the sheep to Jones under the contracts, the title thereof passed immediately to Jones accompanied by the power to dispose of them, and at the same time making them subject to the claims of his creditors. There is no covenant in the contracts requiring Jones to return the identical sheep received by him; but, on the contrary, the expression "keep the old stock good" necessarily implies that he could only be required to return other sheep of the same kind, quality and value. Where a party receiving property is at liberty to return another thing of equal value either in the form of money or otherwise, he then simply becomes a debtor to make the return, the title to the property is changed, and the transaction is a sale. This is the universal rule sustained by an overwhelming array of authorities. Carpenter v. Griffin, 9 Paige Ch. Rep. (N.Y.) 309; Hurd v. West, 7 Cowen 752; Fosdick v. Greene, 27 Ohio St. 484; Chase v. Washburn, 1 Ohio St. 244; Carlisle v. Wallace, 12 Ind. 252; Richardson v. Olmstead, 74 Ill. 213; Johnson v. Browne, 37 Iowa 200; Chickering v. Bastress, 130 Ill. 309; s. c., 17 Am. St. Rep. 309; Lonergan v. Stewart, 55 Ill. 44; Rahilly v. Wilson, 3 Dill. 420.

The plaintiff and his assignors are estopped from disputing Jones' title to the sheep. The rule is well settled that one who clothes another with the apparent ownership of property is estopped from disputing the title as against one who has dealt with the apparent owner upon the strength of the appearances if the person so dealing has altered his position to his injury. Salters v. Everett, 20 Wend. 268; McMurray v. Hughes, 47 N.W. 883; McNiel v. Bank, 46 N.Y. 329; McCauley v. Brown, 2 Daly 426; Ewing v. French, 1 Blackf. 353; Wilson v. Finney, 13 Johns. 358; Lonergan v. Stewart, 55 Ill. 44; Johnston v. Beaver, 37 Iowa 200; Nelson v. Brown, 44 Iowa 455; Mallory v. Nillis, 4 N.Y. 76; Greening v. Elliott, 38 La. Ann. 290; Rogers v. Robinson, 104 Mich. 329; S. C. 62 N.W. 402; Peabody v. Lloyd's Bankers, 68 N.W. 92; Jandon v. Goordin's Ex'rs, 1 Rich. Eq. Cas. 246; Neale v. Searles, 31 Tex. 105.

Where domestic animals are leased, unless there is a stipulation to the contrary, the natural increase thereof during the continuance of the lease belongs to the lessee. Gooth v. Everett, 16 Mo. 490; Stewart v. Ball, 33 Mo. 154; Putnam v. Nyley, 8 Johnson (N.Y.) 432; S. C. 5 Am. Dec. 346; Concklin v. Hovens, 12 Johnson (N.Y.), 314; White v. Storms, 20 Mo.App. 288.

Under the admitted facts in this case replevin cannot be maintained. From the very nature of the action the state of facts existing at the commencement of the action must control its determination. In replevin the question is who was entitled to the property when the action was begun. No change in the conditions after suit was brought will enable the plaintiff to maintain the action if he could not maintain it when the action was commenced. And it is the uniform rule that in this class of cases, the plaintiff must stand or fall on the facts as they exist when the suit was commenced. Cory v. Hewitt, 26 Mich. 228; Aber v. Bratton, 60 Mich. 357; Kingsbury v. Bratton, 11 Iowa 387; Campbell v. Millions, 39 Iowa 346; Bartlett v. Goodwin, 71 Me. 350; Hoke v. Applegate, 92 Ind. 570; Loomis v. Youle, 1 Minn. 175, Blue Valley Bank v. Bane, 20 Neb. 294; Pitts v. Hale, 3 Mass. 321; Lovensohn v. Word, 45 Cal. 8.

And the primary object of the action in replevin is to recover the property in specie. Herdic v. Young, 55 Pa. 176; Hickey v. Huisdale, 12 Mich. 99; Clark v. West, 23 Mich. 242; Hunt v. Robinson, 11 Cal. 262; Hamilton v. Clark, 25 Mo.App. 428; Paul v. Luttrell, 1 Colo. 317.

Messrs. Ferguson, Cannon & Tanner for respondent.

HART, District Judge, BASKIN, C. J., and BARTCH, J., concur.

OPINION

HART, District Judge

STATEMENT OF FACTS.

Plaintiff delivered to one John S. Jones 450 head of sheep under the following agreement:

"This is to certify that I, the undersigned, have leased from John G. Turnbow, of Kamas, Summit county, Utah 450 head of sheep (four hundred and fifty head of sheep), for which I agree to give 50c. per head per year for two years, and keep the old stock good.

"JOHN S. JONES.

"Dated at Kamas, Summit county, Utah Sept. 22, 1899. Term ending Sept. 22, 1901. Rent to be paid after wool is disposed of after shearing. J. S. J."

Plaintiff also claims as assignee of Arthur Bennion and L. J. and Lewellyn Mantle, who delivered sheep to said Jones; the former under the following agreement:

"Kamas, Summit county, Utah.

"This is to certify that I, the undersigned, have received from R. J. Bennion, guardian (334), three hundred and thirty-four head of sheep belonging to Arthur Bennion, for which I agree to give one and one-half pounds of wool per head and eight lambs on the hundred and keep the old stock good for one year.

"JOHN JONES.

"Dated at the above named place October 3, 1896."

This contract was renewed from year to year until the following agreement was entered into:

"Kamas, October 1, 1900.

"This is to certify that I, the undersigned, have leased from Arthur Bennion for the term of two years, for which I agree to pay 40c. per head per year and keep the old stock good, 450 head of sheep.

"JOHN JONES."

The Mantle sheep were taken by Jones at the same time as the Bennion sheep, and kept until October 1, 1899, when agreements substantially the same as the last above mentioned were executed--one to J. L. Mantle, for 130 head of sheep and one to Lewellyn Mantle, for 400 head of sheep; each for the term of two years. All these sheep were run together, and, with the consent of the plaintiff, and to his 450 head, Jones placed his brand on the sheep in order to identify them in case they got mixed up with other sheep, and to prevent confusion of marks. Jones being indebted to the defendant bank on two promissory notes--one for $ 500 and one for $ 3,000--as security for the payment of same gave to defendant bank a bill of sale for 2,000 head of sheep, which included the 1,430 head claimed by plaintiff. Said bill of sale was given under these circumstances: The bank had a mortgage on another herd of sheep to secure the payment of said $ 3,000 note, which sheep Jones had previously purchased from defendant Beckstead. Upon which a part of the purchase price remained unpaid. These sheep upon which the bank held said mortgage were shipped to Chicago by Jones, and sold for $ 7,400, and that amount was remitted to the defendant bank. Jones informed the cashier of said bank that he was going to ship some Beckstead sheep, but the cashier testifies that he supposed Jones was going to ship some other sheep for Beckstead, and did not learn that they were the mortgaged sheep until some time after receiving the said remittance and applying about $ 1,500 in settlement of an overdraft account Jones had with the bank, and permitting a part, if not all, of the balance of the remittance to be checked out by Jones. The cashier of defendant bank testified that, after learning of the sale of the mortgaged sheep: "I demanded of Mr. Jones that he make good the security upon that $ 3,000 note which he had sold without the consent of the bank. He asked me what I wanted, and I said, 'You have your herd of sheep out at Kamas,' and Jones said, 'Yes.' I said, 'Let me see, there are some 2,000 head?' He said: 'Yes, sir; somewhere near. There may be one or two less or one or two more.' I said, 'Possibly we could take a chattel mortgage upon the herd at Kamas, and substitute it for the chattel mortgage on the herd you have sold.' Jones said, if that could be done, he was willing to make such a mortgage." After consulting an attorney, an absolute transfer was demanded and executed. The sheep were not present at the time said bill of sale was given the bank. Jones furnished the information as to the marks and brands upon the herd. Jones testifies that the bill of sale to the bank was given by way of security for the indebtedness, and this is borne out by the subsequent proceedings in relation thereto. The bill of sale and the said notes were assigned by the bank to Beckstead, apparently for the purpose of collection, and he afterwards brought suit thereon, and obtained judgment against Jones on two said two promissory notes and upon the indebtedness of Jones to Beckstead in the sum of $ 6,286.80, upon which Beckstead procured an execution to issue. A levy upon and sale of the said sheep which Beckstead had taken into his possession under the said bill of sale was had. The plaintiff herein was not made a party to the suit foreclosing said bill of sale. The court,...