upon title and ownership of the stallion. Defendant answered the complaint, denying the plaintiff's ownership, and alleging that one Thomas Creath, at the commencement of the action, was the owner of the stallion. Defendant's answer further states, in substance, that the defendant, before the commencement of this action, had taken possession of the stallion while the stallion was in the possession or under the control of said Thomas Creath; that such possession was taken by defendant as a constable of said county, "under a writ of attachment issued out of the court of John S. Tufford, one of the justices of the peace of said county; and that the defendant was one of the constables of said county, and was at the commencement of this action holding said stallion as the constable to whom the said writ of attachment was directed." Upon these issues the case was tried to a jury, and, after plaintiff had submitted his testimony, and rested his case, counsel in behalf of the defendant moved for a directed verdict, which motion was granted. Upon this feature of the case the record is as follows: "The defendant moves the court to direct the jury to find a verdict for the defendant for the reason that the plaintiff has failed to make a prima facie case for the ownership of the stallion, Prince Wilkes, for which this action is brought, it appearing that said Exhibit A is a contract of conditional sale, and the same not having been filed as required by section 4732 of the Revised Codes of North Dakota. The motion is granted by the court, to which action of the court the plaintiff duly excepts. The Court: The motion of the defendant is granted, and the foreman of this jury is directed to sign the verdict presented by the defendant's counsel. To which ruling and direction of the court the plaintiff by his counsel excepts. Thereupon the jury, under the direction of the court as aforesaid, found the following verdict: 'We, the jury, find for the defendant. We find that the defendant was and is the owner of the horse, and entitled to the immediate possession thereof; and that the value of his interest in said horse is three hundred dollars.' To which verdict of the jury and the entry thereof by the court the plaintiff duly excepts." Pursuant to said verdict and an order directing the entry of judgment, the following judgment was entered in the district court: "Wherefore **

**

it is ordered and adjudged that the defendant have and recover of and from said plaintiff the immediate possession of the certain stallion, Prince Wilkes, and described in plaintiff's complaint, or the sum of three hundred dollars, with interest thereon at the rate of seven per cent. from and after the 17th day of January, 1901, besides for costs in this action, the same to be allowed and taxed by the clerk of said court." Error is assigned in this court upon the order granting the motion to direct a verdict, and upon render

ing and entering such verdict, and upon the order for judgment and upon the judgment.

The only evidence offered at the trial was introduced by the plaintiff, and, except the testimony of the sheriff upon features of the case not now material, the evidence consisted of the oral testimony of the plaintiff and a certain written agreement signed by plaintiff and Thomas Creath, which is dated June 22, 1900. Plaintiff testified, in substance, that on or about the date of the written agreement he delivered the possession of the stallion to said Creath; that plaintiff next saw the stallion on July 4, 1900, when he was in Creath's possession, and that plaintiff did not see him again until the 2d day of January, 1901. The animal was seized and turned over to plaintiff about January 17, 1901. The testimony tends to show that Creath had abandoned the horse and left the country some time prior to the commencement of the action. The written agreement in evidence is too long to quote at length, but its terms are to this effect: Plaintiff agreed conditionally "to well and truly sell" the stallion to Creath for the price of $600, but such sale was "not to be made" until the conditions named in the writing were fully and completely performed. It was stipulated that immediate possession was to be given Creath, and the animal was turned over to Creath accordingly, but the writing expressly stated that Creath should acquire "no right, interest, lien, or claim to said stallion, except naked possession," until he had fulfilled the agreement according to its terms and stipulations. The writing stipulated that the contract should be fully completed on October 1, 1901; also that on default of any of the covenants of the agreement the plaintiff or his agents "may at any time, at his or their option, declare this contract at an end," and retake possession of the said stallion, and "put an end to this contract in all things, retaining to the party of the first part [plaintiff] any and all payments, benefits, and profits which the party of the second part may make or render to the party of the first part hereunder, collateral to one certain note even date herewith." The writing in general terms required Creath to provide the necessary food for the stallion, to carefully keep and groom and in all respects care for the animal in a proper manner. Also required Creath to keep and stand the stallion for breeding purposes, and to take and turn over to plaintiff all the liens and proceeds derived from breeding the animal to mares, and that such proceeds should be credited on the contract. At the time the stallion was turned over to Creath the plaintiff received from Creath one horse of the agreed value of $100 and two promissory notes, each for the face amount of $100. At the time of the trial one of the notes had been paid and the other had not been paid. As to the horse and notes, plaintiff testified: "I re

ceived two notes and a horse. The face of the notes was $100 each. The estimated value of the horse was $100. It is a fact that I turned the horse over to Creath. He paid two notes and a horse, and turned them over to me. I did not give him credit for $300. I don't credit notes until they are paid. In a sense I gave him credit for the notes. I took possession of them, and exercised ownership over them, and do yet. Have from that day until this." On cross-examination plaintiff testified, referring to Creath, "He did not pay me very near the value of the horse at the time he got him." Plaintiff further testified, in effect, that when he reclaimed possession the stallion, at the market price, was worth $300; but further testified that for breeding purposes the animal was worth more than that amount. This review of the evidence will suffice to show that Thomas Creath had not, at and prior to the commencement of this action, performed or fulfilled the conditions stipulated in the written agreement. He had abandoned the stallion and quit the country. The stallion was not paid for by him as required by the writing, and no part of the purchase price had been paid except as already stated. Upon this state of facts it is manifest that the title to the stallion (which had been expressly reserved to the plaintiff in the writing) was, at the time of the trial, vested in the plaintiff. It follows that at the close of the testimony, and when the verdict for defendant was directed, the plaintiff had made out at least a prima facie case of ownership and right of possession in himself. Upon this state of the evidence the order directing a verdict for defendant was manifestly error, unless some fact not hitherto mentioned justified the order.

The only other testimony or fact in the record which is relied upon as a justification of the order is to be found in the language of the motion for a directed verdict, which has been set out at length, and it is to the effect that the agreement in writing, which is—and, we think, correctly-described in the language of the motion as a "contract of conditional sale," had not been filed as required by section 4732 of the Revised Codes. It is apparent that the order directing the verdict was based upon the omission to file the contract, and in making the order it must have been assumed by the trial court that the plaintiff's failure to file the contract, as against the defendant, operated to vest the title of the stallion in Thomas Creath, and to justify the defendant's seizure under the attachment. But the mere failure to file the contract did not alter its provisions, nor impair any of its obligations. As between plaintiff and Thomas Creath, the title of the horse was vested in the plaintiff until the conditions of the contract were performed, and any omission to file the instrument could not, as between plaintiff and Creath, operate to transfer the title to the latter. It appearing, therefore,

from the evidence, that the plaintiff was, and at all times in question had been, the owner of the stallion, such evidence was entirely sufficient prima facie to entitle plaintiff to recover in the action. Ownership draws to it the right of possession until a better right is made to appear. The plaintiff being the owner, it follows that the defendant's seizure of the stallion by attachment, as the property of Thomas Creath, constituted no defense until the facts necessary to justify the seizure are first established. In this case it became incumbent upon defendant to aver and prove that the defendant was within the benefits of the statute requiring contracts such as that in question to be filed. No such facts were alleged in the answer and no attempt to prove them was made at the trial. Section 4732, Rev. Codes, reads: "All reservations of the title to personal property, as security for the purchase money thereof, shall, when the possession of such property is delivered to the vendee, be void as to subsequent creditors without notice and purchasers and incumbrancers in good faith and for value, unless such reservation is in writing and filed and indexed the same as a mortgage of personal property. In indexing such instruments the register of deeds shall treat the purchaser as mortgagor and the vendor as mortgagee." Defendant does not claim the possession of the stallion upon the ground that he is either a purchaser or an incumbrancer of the animal. If defendant has any rights under the statute, such rights must be based upon a claim that he is a "subsequent creditor without notice," or, if not such, that as an officer he stands in the shoes of a subsequent creditor without notice. The omission to file the contract, as has been seen, does not operate to render the same void in toto, nor void as between the parties to it. Such omission, by the terms of the statute, renders it void only as to certain classes of persons; among others, "subsequent creditors without notice." As to other classes not referred to in the statute, the omission to file is of no consequence. In the case at bar the defendant has not succeeded in placing himself within the class of "subsequent creditors without notice," nor does defendant, by either allegation or proof, show or attempt to show that he represents a subsequent creditor without notice. Under the facts of this case, the contract not being filed, creditors of Thomas Creath who had no notice of the existence of the contract, and who became creditors after the stallion was delivered to Creath, would be in a position, under an attachment issued in an action against Thomas Creath, to seize the stallion as the property of Thomas Creath. But none of these vital facts are alleged in the defendant's answer, and no attempt was made to prove them, or any of them, at the trial. The answer states, in effect, that the defendant had seized and was holding the stallion under an attachment issued out of a justice's court; but this is far from being

It

sufficient. The answer contains no averment that the attachment issued in any action whatsoever, nor does the answer allege that the attachment issued in an action in which a creditor of Thomas Creath was a party, nor that it issued at the instance of any subsequent creditor of Thomas Creath who had no notice of the existence of the conditional sale contract, and no notice of plaintiff's actual ownership of the stallion. must follow that the defendant, under the evidence, in attaching the stallion, occupied the position of a wrongdoer. Under the evidence before the trial court the seizure of the animal by the defendant as the property of Thomas Creath was wrongful, and wholly without legal authority. Under these circumstances it was clearly error to direct any verdict in favor of the defendant, and the verdict actually rendered was obviously erroneous in awarding damages in favor of the defendant.

Our conclusion is that the judgment appealed from is erroneous, and the same will therefore be reversed. All concur.

WITTE v. REILLY et al. (Supreme Court of North Dakota. June 9, 1902.)

SALE CASH ON DELIVERY-WAIVER

EVIDENCE.

1. On a contract, for the sale of personal property, which provides that payment shall be made in "cash when the goods are delivered," the provision for cash payment on delivery may be waived by the acts or conduct of the seller.

2. An unconditional delivery of property to a carrier under such a contract is a delivery thereof to the purchaser.

3. Whether there has been a waiver of the conditions of a contract by an apparently unconditional delivery is a question of fact, to be determined from such delivery and all other facts in the case, including declarations and conversations of the parties tending to show what the intent of the party delivering was.

4. On the trial the following question was asked the plaintiff and answered under objection: "Did you ever, Mr. Witte, intend to part with the goods except as they were paid for with cash?" Held prejudicial error.

(Syllabus by the Court.)

Appeal from district court, Cavalier county; O. E. Sauter, Judge.

Action by John C. Witte, doing business as the John C. Witte Manufacturing Company, against J. J. Reilly and D. P. Jameson. Judgment for plaintiff. Defendants appeal. Reversed.

Cleary & McLean and John H. Fraine, for appellants. Charles G. Laybourn, for respondent.

MORGAN, J. This is an action in claim and delivery, brought to secure the possession of certain drug-store fixtures, consisting of wall cases, prescription counter, and show cases.

The trial in the court below resulted in a verdict for the plaintiff. A motion for a

new trial, based on a statement of the case, was denied. This appeal is from the order refusing to grant a new trial. Errors are assigned on the introduction of evidence, duly objected to, and the refusal to grant a new trial, and there are other assignments of error. The facts, as developed at the trial, so far as material in the determination of this appeal, are as follows: The plaintiff is a manufacturer of store fixtures, and does business in Minneapolis in the name of the John C. Witte Manufacturing Coinpany. The defendant Reilly is engaged in the drug business at Milton, N. D. On or about October 25, 1897, the defendant went to the plaintiff's place of business at Minneapolis for the purpose of securing the prices of such fixtures as he desired to purchase. He there met the plaintiff, and a general conversation followed as to what the defendant desired to purchase. The defendant, however, was not then able to give the exact measurements of the building in which he intended to use such fixtures. No definite arrangements were concluded at this meeting in regard to the purchase of such goods, for the reason that such measurements were not at hand, and for the reason that Reilly wished to obtain prices from other manufacturers. It was therefore agreed that the defendant should send plaintiff the exact dimension of his store upon his arrival at Milton, after which the plaintiff would send the prices of the goods, which were to be the lowest cash prices. The defendant sent the measurements, and the plaintiff thereafter sent to the defendant the prices for the fixtures in the following letter to the defendant:

"Minneapolis, Minn., Nov. 2, 1897. J. J. Reilly, Milton, N. D.-Dear Sir: We will make and deliver on board cars in the city of Minneapolis, in good order, the following store fixtures, according to plans and specifications furnished by us and approved by you, all exposed work to be made of oak finished in the best possible manner, for the sum of $290 cash when work is delivered. Yours truly, J. C. Witte Mfg. Co.

"Signed and accepted by J. J. Reilly." This letter and the acceptance in writing of its terms by Reilly constitute the contract under which the fixtures therein described were agreed to be sold and delivered. Show cases were also agreed to be sold under an offer from plaintiff, duly accepted by defendant, but the details of that contract will not be mentioned, as the case will be disposed of on the ground that evidence was received on the trial erroneously which was prejudicial and must result in the granting of a new trial. The plaintiff immediately commenced the manufacture of the fixtures upon receipt of the accepted order, which was about November 6th. On December 6th the plaintiff delivered these goods to the Great Northern Railway Company at Minneapolis, consigned to the defendant at Milton. The plaintiff took a bill of lading from the

railway company, in which Reilly was named as consignee, and immediately sent it to him at Milton. He also wrote him a leter on the same day, explaining the delay in manufacturing the fixtures. He also then sent him a statement of the fixtures sent and the prices as hitherto agreed upon. In none of these inclosures was there any statement that the purchase money should be immediately remitted, nor was there anything in them about payment at all. On December 22d plaintiff again wrote defendant asking him for an explanation why the fixtures had not been taken by the defendant from the freight depot, as the company's agent had written plaintiff that the goods had arrived at Milton. There was nothing said in this letter about payment or remittance of the money due on the purchase. The defendant answered this letter and explained that the goods had been there only a day or two, and asked plaintiff for the proper freight rate, as he thought he had been compelled to pay too much freight and had paid it under protest. On December 27th the plaintiff wrote him, in answer to this letter, and stated what the proper freight rate was. He said nothing in such letter about the condition under which he now claims that he had delivered the fixtures to the company, nor did he say anything as to remittance of the purchase money. The defendant, Reilly, did not remit any money on account of the purchase price, nor mention the subject in any of his letters. On January 6, 1898, plaintiff again wrote to Reilly, but his letter is not produced. The plaintiff testified: "And I wrote him again on the 6th of Jan., and when I found that Dr. Reilly didn't keep his agreement I went to my atty. and asked him to go and replevin the goods and get them in my possession again. Then this suit was commenced." The suit was actually commenced on March 24th. Before such date the fixtures had been sold to the defendant Jameson; when sold, does not appear. No question is raised on this appeal growing out of such sale. It is stipulated that no point be raised on behalf of the defendant Jameson. The evidence bearing on the question of such sale to Jameson is not produced in this court, and the appeal is to be determined as though no sale had been made.

On the trial it was contended by the defendants that the delivery of the goods was unconditional, and passed the title and possession thereof to the defendant Reilly completely and without any reservation. On the part of the plaintiff it was contended that such delivery was made pursuant to the terms of the agreement for a sale, and therefore conditional, and that the title did not pass until payment was made. Whether the title passed, by the delivery to the carrier, to the defendant Reilly, became a material issue on the trial. The contract under which these goods were manufactured and delivered pro

vided that the goods were to be paid for in "cash when the work was delivered." The contract did not ripen into a completed sale until there had been a delivery and a payment, unless there was a waiver of the terms of the contract. Under such contract, delivery and payment were to be concurrent acts. The plaintiff was therein obligated to deliver the property, and the defendant was obligated thereupon to pay for it. Either or both of these conditions of the contract might be waived by the parties. The plaintiff could waive the condition that payment must be made when the goods were delivered, and the defendant might pay for them before delivery. Whether the condition of the contract that payment should be made when the goods were delivered was waived by the plaintiff, by delivering them without any express conditions made at the time of the delivery, was an issue at the trial. On the trial, the plaintiff's attorney asked the plaintiff, while testifying, the following question: "Did you ever, Mr. Witte, intend to part with the goods except as they were paid for with cash?" The question was objected to on proper grounds stated, and the objection overruled. The witness answered the question in the negative, and appellants urge that the admission of such answer was prejudicial error. Whether the conditions of a contract had been waived in any case is a question of fact to be determined from a consideration of all of the evidence in the case, including the contract, conversations, declarations at the time of delivery, all other facts or circumstances connected with the case and the delivery.

Before the title passes to the purchaser in cases of sales for cash, where delivery and payment are to be concurrent acts under the contract, the intent with which the delivery was made becomes a material question. The condition would not of necessity be waived if nothing is said when the delivery is made as to the intent in making such delivery. If the intention that the delivery is conditional can be inferred from the conduct and acts of the party delivering, then the title will not pass. It is optional with the seller whether he will waive the condition by an unequivocal and unrestricted delivery or not. If he delivers the property unconditionally, such delivery, considered alone, is presumptive evidence of a waiver of the condition that title shall not pass until payment is made. Fishback v. Van Dusen, 33 Minn. 117, 22 N. W. 244; Scharff v. Meyer, 133 Mo. 428, 34 S. W. 858, 54 Am. St. Rep. 672; Mechem, Sales, § 549; Haskins v. Warren, 115 Mass. 514; Hammett v. Linneman, 48 N. Y. 399; Benj. Sales, p. 282. This presumption is subject to be overcome by the acts or declarations of the seller or the circumstances surrounding the delivery, although not immediately connected therewith or occurring at the immediate time of the delivery. Hammett v. Linneman, supra. The purposes of such delivery as shown by facts may be given as bearing on the in

tent with which it is made. Rosenbaum v. Hayes, 5 N. D. 476, 67 N. W. 951.

An unconditional delivery to a carrier for shipment to the purchaser is a delivery to the purchaser. Mechem, Sales, § 739.

The delivery to the carrier in this case was apparently unconditional, but such delivery was not conclusive evidence that the condition that the price was to be paid on delivery was waived. The plaintiff had a right to rebut the prima facie effect of such unconditional delivery by showing any facts or circumstances existing at the time, or that existed before the delivery, in explanation of such delivery or as showing his intention or reasons or purposes in so delivering the property.

The question objected to by the defendants related to the undisclosed and secret intention of the plaintiff at the time of the delivery. It called for no fact existing outside of the plaintiff's mind. It called for a bald conclusion as to plaintiff's intent, unsupported by anything occurring at the time of the delivery as a fact, to show an intention by the delivery contrary to what the act itself imported. To permit a contradiction of the legal effect of such delivery by his secret and undisclosed intention would, in our opinion, be going too far even under the wide latitude allowed to show the intention of parties in the performance of particular acts. That would be permitting the plaintiff to change the relations between himself and the defendant, as created by his acts, by stating his own unspoken intention. What his intention was, was a question of fact to be found by the jury from facts shown in evidence, irrespective of his own unexpressed intent. "Hence the important question, in determining whether there has been a waiver of a condition of sale, is, has the vendor manifested, by his language or conduct, an intention or willingness to waive the condition, and make the delivery unconditional and the sale absolute without having received payment or the performance of the condition of sale? This must depend on the intent of the parties at the time, to be ascertained from their conduct and language, not from the mere fact of delivery alone. It may be proved by various species of evidence: by declaration, by acts, or by forbearance to acts." Fishback v. Van Dusen, supra. See, also, Mechem, Sales, § 551; Railroad Co. v. Kinchen (Ga.) 29 S. E. 816; Sutter v. Rose (Ill.) 48 N. E. 411; Germain v. Lumber Co. (Mich.) 74 N. W. 644; Zimmerman v. Brannon (Iowa) 72 N. W. 439. "In a sale of specific chattels an unconditional delivery to the buyer or his agent, or to a common carrier consigned to him, whether a bill of lading is taken or not, is sufficient to pass the title if there is nothing to control the effect of it. If the bill of lading or written evidence of the delivery to a carrier be taken in the name of the consignee or be transferred to him by indorsement, the strongest test is afforded of the intention to transfer the prop

erty to the vendee. Bank v. Bangs, 102 Mass. 291. If the vendor intends to retain the right to dispose of the goods while they are in course of transportation, he must manifest that intention at the time of their delivery to the carrier. It is not the secret purpose, but the intention as disclosed by the vendor's acts and declarations at the time, which governs." Wigton v. Bowley, 130 Mass. 252. "Consigning the goods without restrictions to the purchaser, or assigning and transmitting to him a bill of lading, are strong evidences of an intention to pass the title, and cannot be controlled by secret determinations to the contrary." Mechem, Sales, § 740. "A mere mental act on the part of the seller will not suffice if it be not accompanied by some outward act indicative of a purpose, and legally sufficient to retain a hold upon the title other than the mere right of stoppage in transitu." Mechem, Sales, § 771. The cases cited by the appellants to show that the question was a proper one are not in point upon the facts of this case. They refer to direct evidence of a person's intent when charged with fraud or with a felonious homicide, or whether fraudulent representations were relied on, or as affecting damages in actions for malicious prosecutions and other similar actions. For these reasons we conclude that the admission of the answer to the question objected to was erroneous. The jury was thereby allowed to consider the unexpressed intentions of the plaintiff in delivering the goods to the carrier, and thereby to defendant, although inconsistent with the act of delivery itself. If the delivery was unconditional, the terms of the contract were thus waived by such delivery, and the plaintiff's intention, unexpressed, cannot be shown in contradiction of the legal effect of such delivery. Such testimony was of a character that would influence the jury to believe that there was no waiver of the condition of the contract, and its admission was without doubt prejudicial.

The order refusing a new trial is reversed, a new trial granted, and the cause remanded for further proceedings. All concur.

1. This action was brought to recover the possession of personal property owned by the defendant, and which was in defendant's possession when suit was brought. Plaintiff alleges a right of possession under a chattel mortgage, and alleges breaches of the conditions of the mortgage, and also a demand of the property, and refusal to deliver, before suit brought. Defendant answered, admitting the execution and delivery of the mortgage and notes secured thereby, but specially denied plaintiff's ownership of the notes and mort gage, and alleged that nothing was due on the notes. The answer also denied the alleged demand, and specially denied all the breaches