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same safety he may a stranger.”! And many cases apply a still more liberal rule.?
chinery and appliances located in printed notices advising the public leased rooms were sold in good faith, that he had bought the brick, that and vendor locked the doors and sur- they were his property and were for rendered the keys to the vendee. sale, and gave in the notices his adHeld, a sufficient delivery. Kellogg dress and his telephone number. The Newspaper Co. v. Peterson (1896), 162 notices remained posted two or three Ill. 158, 44 N. E. R. 411, affirming 59 months, and never at any time after Ill. App. 89. H. bought from P. and the sale did P. claim or exercise any paid valuable consideration for cer- control over them. At the time of tain brick lying on the street. He the execution, however, four months posted on the pile several written or after the sale, the notices had disap
1 In Dewey v. Thrall, 13 Vt. 284. vendee advertised for a week in the To same effect: Stevens v. Irwin, 15 local papers that she had bought the Cal. 503, 76 Am. Dec. 500; Gould v. goods and would continue the busiHuntley, 73 Cal. 399, 15 Pac. R. 24; Held, a sufficient change of Deere v. Needles, 65 Iowa, 101, 21 N. possession. W. R. 203; French v. Hall, 9 N. H. ? Thus, in Shaul v. Harrington(1891), 137, 32 Am. Dec. 341; Ziegler v. Hand- 54 Ark. 305, 15 S. W. R. 835, it is said rick, 106 Pa. St. 87.
“that a legal delivery, and not a It is not always necessary that the visible change of possession, is all "public" shall know about the sale that is required to protect the vennor that the change of possession dee's title." “Constructive delivery shall continue until the whole com- being enough to satisfy the law, it is munity has become apprised of the an easy transition to constitute the fact, provided there has in fact been vendor a bailee for the vendee, and an actual and open change of pos- so work out a delivery. And it is session. Thus, on the sale of a horse, held that such a delivery is sufficient buggy and harness, it is not neces- against creditors. Whenever there sary that the whole community shall is a completed contract of sale, and be made aware of it in order to make an agreement by the vendor to hold it valid. Deere v. Needles, 65 Iowa, as bailee for the vendee in lieu of an 101, 21 N. W. R. 203.
actual delivery, the sale is complete In Benjamin v. Madden (1896), 94 against creditors if it is not otherVa. 66, 26 S. E. R. 392, there was an wise fraudulent.” Citing Little Rock actual and bona fide sale, and the & Fort Smith Ry. Co. v. Page, 35 Ark. vendee took possession, but the 304; Stinson v. Clark, 6 Allen (Mass.), vendor and his former clerk were 340; Ingalls v. Herrick, 108 Mass. 351; retained as salesmen, the vendor's Thorndike v. Bath, 114 Mass. 116; name was continued on the window. Barrett v. Goddard, 3 Mason, 107; shades (this being the only sign), and Webster v. Anderson, 42 Mich. 554; the vendor's license was not trans- Norwegian Plow Co. v. Hanthorn, 71 ferred to the vendee. The bill of Wis. 529, 37 N. W. R. 825; Pregnall sale, however, was recorded and the v. Miller, 21 S. C. 385.
-“Exclusive.” — The possession of the buyer must, finally, it is said, be an exclusive one — that is, one not
peared. Held, a sufficient change of dence of sale, delivery and contin. possession. Hawkins v. Kansas City uous possession. Everett v. Taylor Hydraulic, etc. Brick Co. (1895), 63 (1896), 14 Utah, 242, 47 Pac. R. 75. Mo. App. 64, 1 Mo. App. R. 609. D. L. was engaged in other business in purchased and took a bill of sale for S., and on the advice of a friend who wood piled upon the land of a stranger, was acquainted with the business of X., and subject to a lien for cutting the store in F. he bought the stock The wood was measured and form- of goods therein, went to F. for a ally delivered, but was not moved. day, took possession, changed signs, Within three and one-half hours and hired one of the vendor's clerks thereafter M., the seller, paid off the and left him in charge, while L. himlien of the choppers out of money re- self returned to S. The vendor gare ceived from D. Held, a sufficient de- up possession and had nothing more livery and change of possession. Du- to do with the business for two weeks, bois v. Spinks (1896), 114 Cal. 289, 46 at the end of which period L. hired Pac. R. 95. W. was indebted to his him and put him in charge of the barkeeper, K., and proposed that if K. business. Held, that there was would pay him the difference be- substantial and unequivocal change tween the debt and the value of the of possession following the sale. stock in the saloon he would sell Levy v. Scott (1896), 115 Cal. 39, 46 such stock to him. K. had left the Pac. R. 892. employ of W. and another barkeeper A stone-cutter transferred his stock had been employed. The property in trade to his sister in payment of was delivered to K., the new bar- two of his notes held by his sister. keeper discharged, and the place The sister continued the business, locked up by K., who had no license, notified dealers of the transfer and of and who kept the key and was there- her cole interest in the business, paid after the only person who entered its running expenses, appointed her the place. Held, that there was an brother as manager and paid him a immediate delivery followed by an salary. Held, a sufficient delivery and actual and continued change of pos- change of possession. Kelly v. Mesier session. Howe v. Johnson (1897), 117 (1897), 46 N. Y. Supp. 61, 18 App. Div. Cal. 37, 48 Pac. R. 978. A vendor de 329. One partner had had nothing livered to plaintiffs enough wool at to do with the business of the firm nine cents a pound to pay a debt of for a month, and the other trans$505, which he owed them, and they ferred their stock of goods to a credmoved it a considerable distance to itor at a good valuation in payment the opposite end of the shed and of a firm debt. After he had shown stored it; afterwards the vendor, the new delivery boy the delivery upon an agreement with the plaint- route, he left the store, leaving it in iffs, employed a man who owed charge of the purchaser's agent, who him to haul the wool to the station had been in the employ of the firm to be shipped in the names of the as book-keeper for the month preplaintiffs. Held, prima facie evi- vious. Evidence held sufficient to
concurrent with the possession of the seller. But this rule also, like the others, adapts itself to the circumstances of the
show actual and continued and son, except when she intrusted change of possession. Stratton v. a part of it to them to sell to obtain Burr (Cal., 1898), 54 Pac. R. 735. A necessaries for the family; they refirm composed of father and son sold turned it to her upon failing to find to the wife and mother jewelry, a purchaser. Held, that there was which was delivered to her and kept an actual and continued change of by her for three months in her house, possession as against creditors · In where she resided with her husband the same case, the mother, after
1 " The law undoubtedly is," said did before. In such a case the court Sharswood, J. (in McKibben v. Mar- must pronounce it fraudulent and tin, 64 Pa. St. 352, 3 Am. R. 588), colorable per se. We have been re"that not only must possession be ferred to three cases only in our taken by the vendee, but that pos- books which were determined on session must be exclusive of the this ground. These were all of the vendor. A concurrent possession will character I have stated. Hoffner v. not do. There cannot in such case,' Clark, 5 Whart. 545; Brawn v. Kelsaid Mr. Justice Duncan, · be a con- ler, 43 Pa. St. 104, 82 Am. Dec. 554; current possession; it must be exclu- Steelwagon v. Jeffries, 44 Pa. St. 407. sive, or would by the policy of the Certainly it may be considered as law be deemed colorable.' Clow v. settled luy abundant authority in Woods, 5 S. & R. 275, 9 Am. Dec. 346. this court that where there has been And again in Babb v. Clemson, 10 S. a sufficient actual or constructive & R. 428, 13 Am. Dec. 684: “There delivery to the vendee, and he is in cannot be a concurrent possession in possession, the fact that the vendor the assignor and assignee; it must is employed as a clerk or a servant be exclusive or it is deemed color- about the establishment, in a ca. able and fraudulent. To defeat the pacity which holds out no indicium execution there must have been a of ownership, does not constitute bona fide, substantial change of pos- such a concurrent possession as the session. It is a mere mockery to put law condemns. In such cases it is a in another person to keep possession question for the jury whether the jointly with the former owner. A change of possession has been actual concurrent possession with the as. or bona fide – not pretended, deceptsignor is colorable. But what is the ive and collusive; " citing McVicker concurrent possession which will be v. May, 3 Pa. St. 224, 45 Am. Dec. deemed such as matter of law? Evi- 637; Forsyth v. Matthews, 14 Pa. St. dently as owner, or accompanied 100, 53 Am. Dec. 522; Hugus v. Robwith the ordinary indicia of owner- inson, 24 Pa. St. 9; Dunlap v. Bourship — such as will lead any person nonville, 26 Pa St. 72; Billingsley v. not in the secret to infer that there White, 59 Pa. St. 464. Many cases has been no actual change. The illustrative are cited in the precedvendor must appear to occupy the ing notes. same relation to the property as he
There are many situations in which the seller's physical proximity to the thing sold may continue although his relation of ownership has ceased. Thus, where a father sold goods to his son, who lived with him, it was said that the law did not
keeping the goods three months, de directed by B. & M. to take charge livered them to the plaintiff to be and act as custodian for them. He sold upon commission. Held, that went to L., informing L. of his authe employment of the son by the thority from B. & M., of the sale to plaintiff to assist him in his business, B. & M., etc., and requested L. to act under a contract to which the mother as salesman under him, to take an was not a party did not indicate that immediate inventory, to open a new there had been no actual and con- set of accounts, to make sales for tinued change of possession in the cash only and account daily for remother as against creditors. Roberts ceipts, and to secure the lease of the v. Burr (Cal., 1898), 54 Pac. R. 849. store-room for the new owners, for The seller's possession of hogs when rent of which Munson would give they were levied on does not show a checks at the proper time. All this want of immediate and continued was done. Next day, June 21st, Munchange of possession where such pos- son gave L. written statement of all session was as an agister for hire on this. L. restamped the stationery, leased premises different from those making it “Bass & McDonald.” upon which the hogs were ranging Bank accounts were changed to their at the time of the sale. Henderson proper names under the new arv. Hart (1898), 122 Cal. 332, 54 Pac. rangement. One employee was disR. 1110. The vendors were a com- charged and others were re-employed pany of F. The goods were in a in the name of B. & M. The signs branch store in C., distant about one on the store, and also the advertising hundred and fifty miles. The bill of cards in the store-room, were unsale was made at F., June 18th, to changed. Held, a sufficient change of B. & M. The next day B. & M. took possession as against attaching credpossession by telephoning one Ma- itors of the vendor. Bass v. Pease honey to go over to the sales-room in (1898), 79 Ill. App. 308. M. purchased C. and take possession and act as in good faith and for an adequate custodian for B. & M. Mahoney did cash consideration a stock of goods so, being introduced to L., the sales- from V., and received a bill of sale man then in charge, by the secre- therefor. M. took immediate postary of the vendor company, who •session, bought and sold goods in his informed L. that the stock had been own name, employed a former clerk sold to B. & M. and that Mahoney of V., and remained at the store was custodian for B. & M. Ma- and in full charge of it for two or honey remained five or ten minutes three weeks until he was taken sick looking about, and then went away, and had to go home, when he emreturning in the afternoon and re- ployed V. to take charge during his maining for an equal period. Next absence. The old sign of V. reday Munson returned to C. and was mained above the door, and an old
require the son to turn his father out of doors in order to make his own possession exclusive;' and where property had been transferred from a husband to his wife, the court intimated that it was not necessary that she should separate from him in order to be competent to receive it.Such situations and relationships may give opportunity for fraud and require closer scrutiny than others, but they are not conclusive.
$ 967. Question of sufficiency usually for jury.- Whether the change of possession is sufficient under the circumstances market-wagon with V.'s name upon Held, a sufficient delivery as against it was used in the business. The old attaching creditors. Goodwin bill-heads of V. were used, but V.'s Goodwin (1897), 90 Me. 23, 37 Atl. R. name was obliterated and M.'s sub- 352. See further Masters v. Teller, stituted. M. took a new lease of the 7 Okla. 668, 56 Pac. R. 1067; Gallick store in his own name. During this v. Bordeaux, 22 Mont. 470, 56 Pac. condition of affairs the sheriff levied R. 961. upon the stock as property of V. 1 McVicker v. May, 3 Pa. St. 224, 45 Held, that there was a sufficient Am. Dec. 637. change of possession, and that M.'s 2 Davis v. Zimmerman, 40 Mich. 24. title was good as against attaching (But that there must nevertheless be creditors of V. Menken v. Baker an actual change of possession, see (1899), 40 App. Div. 608, 57 N. Y. Supp. McAfee v. Busby, 69 Iowa, 328, 28 N. 541. K. in payment of a valid debt W. R. 623; Murphy v. Mulgrew, 102 sold and conveyed to his wife his Cal. 547, 36 Pac. R. 857, 41 Am. St. farm and cattle thereon, and the R. 200; McKee v. Garcelon, 60 Me. deed of conveyance of the land was 165, 11 Am. R. 200; Wheeler v. Sel. duly recorded. Held, that the record den, 63 Vt. 429, 21 Atl. R. 615, 25 Am. worked a constructive change of the St. R. 771, and cases therein cited.) possession of the farm, and that that 3 Thus it is said in Illinois (Warner worked a change of possession of the v. Carlton, 22 Ill. 415): “There is no cattle. Vote v. Karrick (1899), 13 doubt that it is a circumstance to be Colo. App. 388, 58 Pac. R. 333. The considered on the question of fraud, seller gave the buyer a bill of sale of but undoubtedly may be explained.” certain cows described as standing To same effect: Godchaux v. Mulin certain stalls in one of the seller's ford, 26 Cal. 316, 85 Am. Dec. 178: barns; the parties went to these Stevens v. Irwin, 15 Cal. 503, 76 Am. stalls, the cows were pointed out, Dec. 500; Morgan v. Miller, 62 Cal. the price was paid, and the seller 492; Gilligan v. Lord, 51 Conn. 562; said, "I deliver you this stock free Greenthal v. Lincoln, 68 Conn. 384, from all incumbrance.” It was also. 36 Atl. R. 813. It may of course also agreed that the seller should keep be found to be merely a sham. Golthe cows for what milk they would lober v. Martin, 33 Kan. 252, 6 Pac. give until a certain date unless the R. 267. buyer sooner sold or removed them.