Freeman v. Hensley

HAYNES, C. This action, in claim and delivery, was brought by respondent to recover certain horses. The horses in question formerly belonged to one Porter, and were purchased from him by Freeman, October 12, 1889, and were afterward, on October 24, 1889, attached by defendant, as sheriff, as the property of Porter in an action brought by Patterson against Porter and Schell. It is conceded by appellant that there was no actual fraud in the sale of the horses by Porter to Freeman, but he contends that there was no immediate delivery of the property to Freeman, and that the sale was not followed by an actual and continued change of possession, as required by section 3440 of the Civil Code. The cause was tried by the court, and findings and judgment went for plaintiff; and, defendant’s motion for a new trial having been denied, he appeals from the order denying it.

What constitutes an “immediate delivery” and an “actual and continued change of possession” is held to be a question of fact to be determined by the court upon the evidence presented in each particular case: Godchaux v. Mulford, 26 [538]Cal. 322, 85 Am. Dec. 178; Claudius v. Aguirre, 89 Cal., at page 503, 26 Pac. 1078. In the latter case it was said: “The circumstances connected with a transfer of personal property-are so varied that it would be impossible to frame a rule applicable to each case, or to determine in advance what acts would be sufficient to meet the requirements of the statute.” The obvious correctness of this statement precludes any very material assistance either to the trial court or this court from adjudicated cases. There was no conflict in the testimony relied upon to show an immediate delivery of the property by Porter to Freeman. The bargain was made in the evening, the consideration being partly an indebtedness of Porter to Freeman, and the remainder was paid in cash by Freeman. The property consisted of seven horses, harness, and wagon. The next morning Porter took Freeman to the corral, and said to him, “There are your horses; there they are.” Freeman and one Strimbeck, who was then boarding with him, took charge of the horses, fed and watered and harnessed them, and Porter executed a bill of sale of the property to Freeman. After this Porter informed Freeman that he had promised one Fletcher to furnish two teams, of six horses each, and a man to drive one of the teams, to do certain plowing for Fletcher, and that Fletcher was to pay $69 per month for the team and a man, and asked Freeman if he would let the team go to do that work. Freeman replied that he wanted the team to work, and that if he could get Strimbeck to drive it he would send the team. Freeman thereupon hired Strimbeck, at $30 per month, to drive the team, and put him in charge of it. Porter also got a man and took another team of six horses, and both teams went to Fletcher’s. Fletcher not being ready to commence plowing, the teams were put in pasture at Fletcher’s for some days, after which plowing commenced, when Strimbeck took charge of and drove Freeman’s team. Some testimony on the part of appellant tended to show that, after plowing commenced, changes were made of horses from one team to the other, so that they became mixed, some of Porter’s horses being in Strimbeck’s team and some of Strimbeck’s in Porter’s. It was testified by respondent’s witnesses that one of Strimbeck’s horses was too slow for his mate, and one of the horses in the other team was too fast for his mate, and these two were changed for