Pearce v. Boggs

New Trial—Draft of Statement—Lack of Signature—Acknowledgment of • Service—Waiver of Objection.—An objection by the attorneys for the plaintiff to the settlement of the defendant’s statement on motion for a new trial, on the ground that the proposed statement had not been signed by the defendant or his attorneys, is without merit, where it is shown on behalf of the defendant that the document had been delivered by the attorneys for the defendant to the paintiff’s attorney, who acknowledged receipt thereon from the defendant’s attorneys of the “original draft of statement on motion for new trial,” and failed to object for want of a signature until after the time had elapsed for service of the draft of the statement.

Sales —Delivery—Attachment—Replevin—Instruction—“ Wrongful ” Prevention of Possession—Question of Law. — In an action of claim and delivery, where it appeared that the plaintiff purchased two mares from the owner thereof, but the custodian of the mares refused to give them up on the ground that an employee of the owner, who placed them in his care with the owner’s consent, told him not to deliver them to any one except on his order, and subsequently snch employee removed them to his own place where he attached them in a suit against their owner, and they were sold to the defendant under execution, an instruction to the jury that if they believed from the evidence that if the plaintiff bought the mares in good faith from their owner, and was prevented from getting possession thereof by the wrongful act of the attaching creditor, they should find for the plaintiff, is erroneous in leaving to the jury the determination of the question of law as to whether any act of the attaching creditor by which the plaintiff had been prevented from getting possession of the mares was “wrongful.”

Id.—Change of Possession—Right of Possession—Improper Instruction — In such case an instruction to the jury that “ what constitutes a delivery of personal property by the vendor to the vendee depends upon the character of the property sold and the circumstances of such particular case, and for the purpose of a delivery it is not necessary that the property should pass into the actual possession of the vendee; therefore, when it is so situated that the vendee is entitled to and can rightfully take possession thereof at his pleasure, he is considered as having actually received it as the statute requires,” is, as to the latter clause thereof, in direct conflict with section 3ÍI0 of the Civil Code.

Id. — Failure to Take Possession—Sale Void as to Creditor__If the property is so situated that the purchaser can take possession of it at pleasure, his failure to do so renders the previous transfer void as to the creditors of the vendor.

Construction of Decisions—Instructions.—The opinion of the court in a given case is to be read in connection with the facts of that case, and the language of the court therein, where it is seeking to apply principles of law to the facts of the case, is not always proper to give to a jury in another case where the same principles are inapplicable or the facts are different.