Welter v. Hill

• Decision Date: 24 June 1896
• Citation: 65 Minn. 273,68 N.W. 26
• Parties: WELTER v HILL, SHERIFF.
• Court: Minnesota Supreme Court

65 Minn. 273

68 N.W. 26

WELTERvHILL, SHERIFF.

Supreme Court of Minnesota.

June 24, 1896.

(Syllabus by the Court.)

Where a crop, to be thereafter raised, harvested, and threshed, was sold before the seed was sown, held, the contract of sale was not an executed, but an executory, contract, and on the evidence the jury were not warranted in finding that the title passed until the grain was ready for delivery.

Appeal from district court, Clay county; L. L. Baxter, Judge.

Action by Leslie Welter against Charles B. Hill, sheriff of Clay county. Verdict for plaintiff. From the judgment entered thereon defendant appeals. Reversed.

Burnham & Tillotson (George S. Grimes of counsel), for appellant.

C. A. Nye, for respondent.

CANTY, J.

During all the time hereinafter stated one Bodkin was the owner of a certain farm in Clay county, in this state, on which he carried on the business of farming. On March 15, 1894, the Economist Plow Company recovered judgment against him for the sum of $2,102.26 in the district court of that county, and on August 2d of the same year caused execution to be issued thereon and levied on about 100 acres of growing flax which was being raised by Bodkin on this farm. This action was brought by plaintiff, claiming to be the owner of the flax, against the sheriff, for the conversion of the same. Plaintiff had a verdict. Defendant's motion for a new trial was denied, and he appeals from the judgment thereafter entered.

It is assigned as error that the verdict is not sustained by the evidence, and, in our opinion, the assignment is well taken. Plaintiff claims to have purchased the field of flax from Bodkin in the spring, before the seed was sown, and to have received a bill of sale of the same. No bill of sale was produced on the trial, and there never was any apparent change of possession, but Bodkin sowed the flax, apparently as his own. However, no question seems to have been raised, and no issue tried, as to whether there was any actual fraud in the alleged sale, or any constructive fraud, except as it is claimed by appellant that the evidence is conclusive that the transaction, if there was any, was a chattel mortgage, and not an absolute sale; and that it is void as against creditors because never filed with the town clerk as required by Gen. St. 1894, §§ 4129, 4130. On this question we will not pass, as we are of the opinion that the next question disposes of the case. Appellant contends that, conceding the contract to be in the nature of a sale, and not of a mortgage, still the evidence does not warrant a finding that it was anything more than an executory contract of sale under which the title to the property had not passed from Bodkin to plaintiff at the time of the levy. In our opinion, the point is well taken. It is the well-settled law of this court that “where, by the agreement, the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, ‘into a deliverable state,’ the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property.” See Restad v. Engemoen (filed June 17, 1896) 67 N. W. 1146. What circumstances are there in this case “indicating” such “contrary intention”? Simply the naked statement of the witnesses that Bodkin gave plaintiff a bill of sale of the flax, without a particle more of evidence to show what the contents of that bill of sale were, except what is hereinafter stated, while there is much evidence and many circumstances in the case to show that the transaction between them was merely an executory and provisional one. On the trial, Bodkin was called by plaintiff, and testified: “Q. State what you did with the crop of flax by way of selling it, if you did sell it. A. Yes, sir. Q. To whom? A. I sold it to Leslie Welter. Q. When? A. Some time in April, just before I put it in; the time I made my agreement for my groceries. Q. What was the consideration? A. It was in the neighborhood of five hundred dollars. I didn't know but what I might want more or less groceries. *** Q. When did he commence delivering you the goods? A. The first goods I got was about the first of April. Q. Did you continue to use goods from his store? A. Yes, sir. Q. Do you know about, as near as you can state, how many hundred dollars' worth of goods you had? A. I think about in the neighborhood of six hundred dollars. I could not say positively, because he rendered his bill monthly. Q. It overrun some what he paid for the flax? A. Yes, sir. Q. Where was the bill of sale given? A. In Welter's store. Q. Was it given at the time of your talk with him about it and arrangement to give it? A. I told him I would get it written out or write it myself. Q. Who wrote it out? A. I wrote it out myself. Q. But not at the same time of the conversation you had with him when you agreed to give it? A. No, it was at the time we came in for more goods. Q. When did you have the first conversation with him about this bill of sale? A. About the first of April. Q. Tell me what this conversation was so far as it related to what was a sale of this crop. A. I went in and saw Mr. Welter, and asked him if he could furnish me some goods during the summer. I had a judgment over me on account of this plow company, and I wanted some groceries, and asked him if he would carry me, and asked him if a bill of sale of flax that would be put in on the north half of section seventeen would be satisfactory. I didn't make up my mind where I was going to put it in, but I...