Van Leeuwen v. Fish

This is an appeal by the defendant from a judgment" entered upon the verdict of a jury, and also from an order denying his-motion for a new trial. The cause of action, being for conversion,, required that plaintiff, in order to succeed, was bound to prove ownership of the goods in question, and that title thereto remained in him.. The goods, it seems, consisted of some 3,000 cigars, which had beens sold or delivered by plaintiff to one Beyer, who then sold, by bill of sale, to defendant, without notice of any claim or lien. Clearly, defendant was an outsider or stranger to the transaction, and plaintiff" was bound, therefore, to prove legal title to the property; the burdwcwas upon him to establish that fact. Examination of the case anew papers on appeal does not disclose sufficient evidence establishing title in plaintiff, identity nor possession in defendant, at the time when-: demand was made. It is claimed that defendant was an innoeeni: purchaser for value, and we think that error was committed upon the-trial—-First, in not dismissing the complaint because of failure ©ej part of plaintiff to establish his case by a fair preponderance of evidence; second, because of error in allowing testimony immaterial,, irrelevant, and not binding upon defendant.

The point is made that tire alleged agreement between plaintiff ami Beyer was void, as against the defendant, under statute of frauds- od conditional sales (Act 1884, c. 315). If this contention be successful^ it follows that the law, although repealed in 1897, was applicable to plaintiff’s agreement in the year 1893; and plaintiff was bound to show a conditional sale, and the filing of the paper as provided by thaff law, if he desired protection- thereunder. It follows that defendant,, an innocent purchaser, without notice, actual or otherwise, of a cobditional sale between plaintiff and Beyer, was not hound by sucId matter, unless filed in the register’s office. The evidence does notr.

' Without considering the numerous charges of the appellant concerning alleged errors of the learned court below in charging the jury, we pass on. to say that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to abide the event. All concur.