Wiltrout v. Sprague

• Citation: 40 Wyo. 215,276 P. 448
• Decision Date: 09 April 1929
• Docket Number: 1530
• Parties: WILTROUT, ET AL. v. SPRAGUE [*]
• Court: United States State Supreme Court of Wyoming

276 P. 448

40 Wyo. 215

WILTROUT, ET AL. v. SPRAGUE ^[*]

No. 1530

Supreme Court of Wyoming

April 9, 1929

APPEAL from District Court, Niobrara County; CYRUS O. BROWN, Judge.

Action by T. R. Wiltrout and another against Julia Sprague. From a judgment for plaintiffs, defendant appeals.

Affirmed.

For the defendant and appellant there was a brief by Edwin L. Brown of Lusk.

The action is one of replevin to determine right of possession of a Ford car with a claim for damage. No other relief can be granted. Schlessinger v. Cook, 9 Wyo. 256; Meyer v. Bingham, (Ariz.) 141 P. 726; Penton v. Hanson (Okl.) 109 P. 238; 34 Cyc. 1354. The trial court based its judgment on the theory, that the bill of sale was given as security. No such position had been taken by plaintiff. The bill of sale was absolute on its face and its terms were not overcome by satisfactory testimony. Fitch v. Flinn (Ia.) 200 N.W. 402; Grieve v. Grieve, 15 Wyo. 358; Hazelton Co. v. Street Ry. Co., 72 F. 317. The opposition failed to state a cause of action. Plaintiff's attempt to convert the action into one for reformation of a contract, was not permissible. The judgment should be reversed.

For the plaintiffs and respondents, there was a brief by Frank A. Barrett, of Lusk, and oral argument by Mr. Barrett.

The action was brought upon the theory that the bill of sale was given for security and tried upon that theory. They were entitled to possession of the car upon the tender of the loan, and replevin was the proper action. 11 C. J. 420, 155 P. 956; 34 Cyc. 1390. Evidence that the bill of sale had been given for security was permissible. 11 C. J. 409, 410. McFadden v. French, et al., 29 Wyo. 410. The trial court made its findings on conflicting evidence, as to the intention of the parties, with respect to the bill of sale, and such finding being sustained by evidence, should not be disturbed. 35 Cyc. 35; 41 C. J. 337.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The District Court of Niobrara County gave respondents, T. R. Wiltrout and Frank Wiltrout, who were plaintiffs below, judgment in a replevin action against the appellant, one of the original defendants therein, and we are asked by direct appeal to review the record. For convenience the parties will be referred to as plaintiffs and defendant, respectively.

The lawsuit was instituted by plaintiffs to recover possession of a Ford automobile and was at first brought against the defendant and her husband. Upon demurrer he was dismissed from the case. Plaintiffs' petition among other allegations, charged in substance that, they were the owners and entitled to the immediate possession of the car, which had a reasonable value of $ 400; that the defendants, on December 20, 1926, agreed to loan plaintiffs the sum of $ 39 and as security for this loan requested that plaintiffs give defendant Julia Sprague a bill of sale for the automobile aforesaid; that defendants also agreed that they would hold said instrument and return same upon the repayment within a reasonable time of the loan thus to be made; that it was further agreed, that defendants might use the car until the loan was repaid as interest on the money loaned. This arrangement was carried out, it is then averred, and also that plaintiffs gave defendant a bill of sale, absolute in form. It is further alleged that on January 6, 1927, T. R. Wiltrout, one of the plaintiffs, tendered to defendants $ 39 in cash and demanded the return of the auto; that this tender has been repeated and still continues but defendants have failed and refused to return the car. Plaintiffs' pleading also contains allegations asserting that the bill of sale was fraudulently obtained from plaintiffs by defendants and that damages in a stated amount were claimed. The prayer was for the possession of the car or an alternate judgment for its value; that it be found that the bill of sale was given merely as security for the loan, and that plaintiffs be adjudged damages.

The answer of the defendants was substantially a general denial, admitting, however, the execution and delivery to defendant by plaintiffs of the bill of sale for the automobile.

The trial of the case was to the court without a jury, and upon its termination the judgment complained of was entered in favor of the plaintiffs. In this judgment it was found by the court that the bill of sale aforesaid was given by plaintiffs to defendant as security for the $ 39 loan, the amount of which had been tendered to defendant for repayment as claimed by the plaintiffs, and that the latter were entitled to the possession of the car on January 6, 1927, and also on March 9, following, the date of the commencement of the action. No fraud was found and nominal damages in the sum of $ 1 only were allowed. The judgment conformed to these findings.

The only question of consequence argued by appellant in connection with the errors assigned is, that plaintiffs, in a replevin action such as this could neither plead nor prove that the bill of sale to the automobile was in reality given as security for the loan made and was to be returned upon its repayment; that plaintiffs' remedy, if any, was a suit in equity to rescind the written contract of sale.

The object of an action of replevin is, of course, to determine the right of possession between the contending parties at the commencement of the suit, and any other question is relevant and material only as bearing upon that issue. Schlessinger v. Cook, 9 Wyo. 256, 62 P. 152.

Cobbey on Replevin (2nd Ed.), Sec. 977, speaking of the nature and scope of the evidence admissible in replevin actions, says that it

"depends wholly upon the nature and source of plaintiff's title or right of possession and the nature of the defense made. The investigation is not closely confined to the naked question of title or right of possession, as these, especially the latter, are frequently but conclusions drawn from other facts and circumstances which must be investigated and understood in order that a correct conclusion may be arrived at, and the evidence may be such as goes to establish or controvert these incidents, or circumstances. The pleadings, evidence and judgment in an action of replevin should be confined to the points and questions necessary to elucidate the right of the plaintiff to the immediate possession of the property in question at the commencement of the suit."

This author further remarks in Section 984:

"Any thing which properly belongs to or explains the transaction in question which would be admissible under the rules of evidence in any other form of action is admissible in replevin. If there is a difference, more latitude is allowed in a replevin action."

Wells on Replevin (2d Ed.), Sec. 318, a later work, unqualifiedly says that:

"The rule may be regarded as settled that where goods are obtained from the owner by fraudulent purchase, he can sustain replevin against the fraudulent purchaser so long as the goods are in his possession."

The first text writer from which we have quoted above had previously reached a conclusion similar to that of Mr. Wells, Section 262 of his discussion of the subject reading in part:

"The rule of law is well settled that a sale and delivery of goods procured by fraud passes no title to the fraudulent vendee as between him and the vendor, and the latter may maintain replevin to recover the goods."

The adjudged cases cited by these authorities amply sustain their conclusion that replevin will lie to recover goods obtained by fraud.

In Roesler v. Shastri, 168 Wis. 153, 169 N.W. 282, an action of replevin to recover a bank draft claimed to have been obtained from the plaintiff through the fraudulent representations of the defendant, it was said:

"Claim is made that since, in delivering the draft to the defendant, plaintiff parted with the legal title thereto, he cannot maintain replevin to recover it. This court has several times negatived that claim, and held that replevin will lie to recover goods obtained by fraud. Singer v. Schilling, 74 Wis. 369, 43 N.W. 101; Lee v. Burnham, 82 Wis. 209, 52 N.W. 255; Mayhew v. Mather, 82 Wis. 355, 52 N.W. 436."

Another illustrative case on the point is Amer v. Hightower, 70 Cal. 440, 11 P. 697--likewise a case to recover the possession of certain personal property or its value in case delivery could not be had and damages for its detention. There, the plaintiff a witness in his own behalf, admitted on cross-examination that he had made a bill of sale of the property described in the complaint. The bill of sale being shown to him, he testified that "he signed it but it was gotten out of him by lying." The bill of sale, absolute in form, was then offered by the defendants and received in evidence. On redirect examination plaintiff was asked to state all the circumstances under which he gave the bill of sale. The defense objected to this question as incompetent under the pleadings; that "no fraud having been alleged in the complaint and this being an action at law, the plaintiff was bound by the wording and language of the bill of sale and could not vary, alter or modify it by parol testimony." For the plaintiff, an offer of proof in detail was made, that the bill of sale was obtained from him through fraud, falsehood and deceit on the part of the defendants. The trial court sustained the objection and refused to allow any such testimony. A judgment upon an instructed verdict for the defendants followed. Before the appellate court it was claimed that the recital in the bill of sale that the plaintiff does "hereby sell and deliver" to the defendant the property in question, was "conclusive upon him and not subject to be disputed except by a suit in equity to...