Bjork v. Bean

Canty, J.

John Bjork, the brother of the plaintiff, made with the defendants Halverson, Richards & Co. a contract to do certain grading on the right of way of a railroad, and to do other work. This contract was in writing. Halverson, Richards & Co. also furnished him a certain “grading outfit,” with which to do this work, but the contract as to this outfit was not in writing. It is claimed by plaintiff that it was an absolute sale of the grading outfit, to be paid for by the grading; and by the defendants, that it was a mere loaning or hiring of the property to John Bjork, with an option or privilege to him to purchase the property if he made sufficient out of the grading to enable him to pay for it. The evidence would have sustained a finding by the jury that the contract was either one of these, or that it was a conditional sale to him, and that the title did not pass until the outfit was paid for. Halverson, Richards & Co. afterwards commenced an action against John Bjork, and procured the defendant Bean, as sheriff of Ramsey county, to levy a' writ of attachment issued therein on a-part of this grading outfit, consisting of horses, mules, harness, wagons, scrapers, etc. Judgment was after-wards rendered in that action against John Bjork, and this property sold on execution issued thereon.

This is an action of trover, brought by the plaintiff, claiming that he bought this property of John Bjork before the levy of the writ of attachment on it, or the commencement of that action.

There was evidence tending to prove that, after the grading contract was performed, John Bjork was not able to pay for the outfit, *248 and agreed with Halverson, Bichards & Co. to return the property to them, which he failed to do, and that they paid him $200 to pay the freight in shipping the property back to them.

At the close of the evidence the court charged the jury, among other things, as follows:

“But the defendants claim that the letter introduced in evidence, as also conversations which were had with John Bjork, tend to show, and are sufficient to establish the fact, that John Bjork elected not to take the property as his own. You will have the letter with you in the jury room, and can read it, and also take into consideration all the rest of the testimony in respect to that point. Be that as it may, with respect to the testimony on that point I charge you, as a general rule of law, that where the owner of property gives the entire and absolute possession of it to another, invests that other with all the signs and tokens of ownership, under circumstances and in such a manner as would justify an innocent third party in believing that that person so in possession was the owner of the property, and the person so believing, in good faith and for a valuable consideration purchases the property from the person so in possession, his title is good as against all the world.”

The defendants excepted to the last part of this portion of the charge commencing with “be that as it may,” etc. We think the exception is well taken. If John Bjork had held the property under a contract of conditional sale, the title remaining in Halverson, Bichards & Co., and this contract was by mutual agreement rescinded, and all his rights under it terminated, so that he became a mere bailee; or if he held the property as a bailee, with merely an option to purchase whether that option was waived or not, — in any of these cases, such possession and appearance of ownership as he may still have had would not enable him to give title to an innocent purchaser.

It is true that 1878 G. S. ch. 39, §§ 15-17, provide that the interest of the vendor in any contract of sale conditioned that the title shall remain in the vendor until the purchase price is paid is void as against innocent purchasers in good faith, unless such contract, or a memorandum thereof, if oral, is filed of record. But, if there is no vendee’s interest to pass to such a purchaser, no such interest will, under this statute, be created by the attempt of the vendee to sell the property to an innocent stranger for value; and, unless such *249 a vendee’s interest passes, such innocent stranger will -not be in a position to invoke the aid of this statute so as to cut off the vendor’s interest. The principle here decided is confined to the facts in this case. No opinion is expressed as to a case where it may be claimed the vendee’s interest is terminated by forfeiture, he still remaining in possession.

It is claimed by respondents that the error in the charge is immaterial, and without prejudice, for the following reasons:

First. That Halverson, Richards & Co. levied on this property and sold it on execution as the property of John Bjork; therefore they are estopped from denying that the property was his. It is sufficient answer to this to say that it was not then his, according to the position of respondent 'himself.

Second. That said action brought by Halverson, Richards & Co. against John Bjork, and the judgment recovered therein, was for the purchase price of this property, (of which it can hardly be said that there was any evidence,) and that, therefore, they are estopped from denying that they sold the property to him.

What would be the effect of these acts as against John Bjork himself it is not necessary here to decide.. Plaintiff’s only claim to the property is that he purchased the property of John Bjork before any ■of these things were done. They would in no manner affect his rights, or prejudice him. While these acts of Halverson, Richards & Co. may be competent evidence tending to prove as a sort of admission by conduct that a sale of. the outfit had been made by them to John Bjork, they constitute no estoppel in favor of plaintiff.

Order reversed.

(Opinion published 57 N. W. Rep. 657 .)