1. The rule of the common law that the lien of the vendor of
personal property to secure the payment of purchase money, is lost
by the voluntary and unconditional delivery of the property to the
purchaser does not prevent the parties from contracting for a lien
which, as between themselves, will be good after delivery.
2. Where a party entitled to recover a certain amount in gold
coin takes, with the approbation of the court, a judgment which may
be discharged in currency, the judgment should be for a sum
equivalent in value to the specified amount of that coin as
bullion.
3. Where the record does not show that the finding of the jury
is contrary to the instruction of the court, the presumption is
that they followed it.
4. Where a witness testifies, in his direct examination, to a
purchase, made by him, it is competent, on cross-examination, to
ask him whether his contract was in writing, and, if it was, to
identify the paper.
On Feb. 26, 1873, W. A. Morris and A. J. Gregory executed a
written contract at Austin, Texas, for the sale to the latter, in
accordance with a schedule of prices in gold, of a large number of
cattle. The contract provided that Morris was to retain a lien on
the cattle until the purchase money, amounting to nearly $8,000,
should be paid, and it, for the purpose of preserving said lien,
authorized him to designate some person as his agent to go along
with and retain possession of the cattle. In the event of the
balance of the purchase money not being paid on or before Oct. 1
following, such agent was to sell all or such portion of the cattle
as would pay the purchase money then due, as well as the wages and
other expenses of the agent. After the contract was signed, Morris
executed to one Poteet a power of attorney authorizing him
Page 96 U. S. 620
to accompany the cattle, and retain the lien provided for. The
cattle arrived on the Laramie Plains some time in September. Oct.
4, the purchase money not having been paid by Gregory, Poteet took
forcible possession of the cattle and drove them from the ranch
where they were grazing to that of one Alsop, some distance off.
Gregory then brought replevin against Morris and Poteet to recover
possession of the cattle and damages for their wrongful
detention.
The defendants, in their answer, denied all the allegations of
the petition and specially that they wrongfully detained the
cattle. At the trial, the plaintiff having introduced evidence
tending to prove possession and ownership, the value of the cattle,
the taking and detention of them, and his demand for their return,
the defendants offered the written contract and other documentary
evidence, which offer was objected to by the plaintiff, and the
objection sustained. The defendants, having by leave amended their
answer, were permitted to introduce the special matter which, under
their original answer, had been excluded by the court. The
plaintiff thereupon excepted. Upon the close of the testimony, the
court gave certain instructions to the jury, which were excepted to
at the time by the plaintiff, and are set out in the assignments of
error.
The court, without objection, charged the jury, that,
"there being no question of title to the cattle put in issue by
the pleadings, but of possession only, if you find for the
defendants, you will find 'that they had the right of possession,'
and will assess such damages as they have sustained by reason of
being deprived of that possession, and the opportunity of selling
the cattle according to the contract."
The plaintiff prayed for certain instructions, which were
refused by the court. They are stated in the seventh assignment of
error.
The jury found for the defendants and assessed their damages
$7,454.90. A motion by the plaintiff for a new trial having been
overruled and judgment rendered, which was affirmed by the supreme
court of the territory, he sued out this writ, and here assigns for
error that said supreme court erred:
1. In sustaining the ruling of the district court in
instructing
Page 96 U. S. 621
the jury as follows, to-wit,
"The jury must compute the damages, and return their verdict on
that computation in dollars and cents, and, if the jury find the
contract on the part of the plaintiff was to pay a certain sum of
money in gold, they will compute the difference between gold and
currency, and render their verdict in dollars and cents in
currency."
2. In sustaining the ruling of said district court in giving to
the jury the following instruction:
"That the written contract between Morris and Gregory, in
connection with the bill of sale, the receipt, and the power of
attorney to Poteet, necessarily explain and define the rights and
interests of the parties to this action in the property in
question."
3. In sustaining the ruling of said district court in giving to
the jury the following instruction:
"That by and under those papers the defendants had a legal right
to take possession of the cattle in question on or after the first
day of October last, and retain such possession, for the purpose of
selling them, according to the terms of said contract."
4. In sustaining the ruling of said district court in giving to
the jury the following instruction:
"That if the jury find that Poteet, in pursuance of his power of
attorney, took possession of said cattle and removed them to
Alsop's ranch for the purpose of selling them according to the
terms of said contract, then they must find the right of possession
in the defendants at the commencement of this action, and must
assess such damages for the defendants as are just and proper."
5. In sustaining the ruling of said district court in giving to
the jury the following instruction:
"That the pleadings in this case put in issue only the right of
possession at the time of the service of the writ of replevin, and
you are instructed that the right of the plaintiff in these cattle
at that time was only a right of redemption as a mortgagor after
condition broken, and that he had no right to the possession of the
cattle, and no right to take them, by replevin or otherwise, from
these defendants, or either of them, until he had paid or tendered
the amount due on the contract."
6. In sustaining the ruling of said district court in giving to
the jury the following instruction:
"If the jury find that by the terms of the written contract,
which must govern in this
Page 96 U. S. 622
case, that the defendants, on the first day of October, 1873,
had a right to sell these cattle, the right to sell necessarily
carries with it the right of possession."
7. In sustaining the ruling of the said district court in
refusing to give to the jury the following instructions:
"If the vendor, Morris, made an agreement of sale and delivery,
and in conformity therewith did sell and deliver cattle to Gregory,
the vendee, and by the terms of the agreement made between the
parties the vendor was to have and maintain a lien upon the
chattels, or cattle, for the balance of the purchase price, by
keeping the said cattle in the possession of the vendor during the
journey from Texas to Wyoming, until the first day of October,
1873, the vendee, Gregory, after receiving the cattle from Morris,
must have first redelivered the said cattle to Morris, and placed
them in his hands as a pledge before the agreed lien of Morris for
balance of purchase price could vest; and second, if such
redelivery was made by Gregory, the vendee, to Morris, the vendor,
and thereafter the vendor, Morris, by himself or his agents, by his
own fault, carelessness, or negligence, permitted the possession of
the said cattle to again pass to Gregory, the vendee, Morris, the
vendor, thereby lost his lien, and all right of possession and
right of property, and possession must thereafter rest and remain
in Gregory."
8. In sustaining the ruling of the district court in overruling
the motion of the plaintiff to set aside the verdict of the jury
for the reason that it was not in due form.
9. In sustaining the action of said district court in rendering
judgment upon the verdict, the said verdict not being in the form
required by law nor in such form that any lawful judgment could be
rendered thereon.
10. In sustaining the ruling of said district court in
overruling the plaintiff's motion to set aside the verdict of the
jury and to grant a new trial.
11. In sustaining the action and ruling of the district court in
admitting in evidence, over the objection of the plaintiff, written
instruments, the execution of the same not having been proved.
Page 96 U. S. 623
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The second, third, fourth, fifth, sixth, seventh, and tenth
assignments of error may be considered together. They relate
entirely to the construction and effect given the contract between
Gregory and Morris, as shown by the several instruments in writing
put in evidence. There was no real controversy as to the facts, but
Gregory claimed that he was the purchaser of the cattle in dispute
from Morris, and that the lien provided for in favor of Morris was
one which a delivery of the property under the contract
extinguished. There was no pretense of payment on his part further
than that shown by the contract itself, or of title, except such as
was acquired through this purchase.
The lien at common law of the vendor of personal property to
secure the payment of purchase money is lost by the voluntary and
unconditional delivery of the property to the purchaser; but this
does not prevent the parties from contracting for a lien which, as
between themselves, will be good after delivery. So, ordinarily,
when the possession of a pledge is relinquished, the rights of the
pledgee are gone. In this case, however, Morris was not willing to
rely upon the lien which the law gave him as vendor, or upon a mere
pledge of the property, but required a special contract on the part
of Gregory, securing his rights. This contract created a charge
upon the property not in the nature of a pledge, but of a mortgage.
The lien, as between the parties, was not made to depend upon
possession, but upon a contract which defined the rights both of
Morris and Gregory, and the power of Morris for the enforcement of
his security. When Poteet assumed the exclusive possession of the
property, no rights of third persons had intervened, and there was
nothing to prevent the execution of the agreement according to its
terms. This clearly gave Morris the right, after Oct. 1, if the
purchase money was not paid, to take the cattle into his own
possession, detain them until the balance due him was discharged,
and sell them if necessary to obtain his money. We think the court
defined correctly the rights of the parties, and that there was no
error in this particular, either in the charge or the refusal to
charge.
Page 96 U. S. 624
The first assignment of error brings up for consideration the
rule of damages laid down by the court. By the laws of Wyoming
Territory, property taken in replevin is delivered to the plaintiff
upon his entering into an undertaking to the defendant, with one or
more sufficient sureties in at least double the value of the
property taken, to the effect that the plaintiff shall duly
prosecute his action and pay all costs and damages which may be
awarded against him. Civil Code, 1869, sec. 190. If the property is
so delivered, and the jury find for the defendant upon the issues
joined, they are also required to find
"whether the defendant has the right of property or the right of
possession only, . . . and if they find either in his favor, they
shall assess such damages as they think right and proper for the
defendant, for which, with costs of suit, the court shall render
judgment for the defendant."
Sec. 195. The delivery of the property to the plaintiff passes
the title to him as against the defendant, who must look for his
protection to a recovery in damages if the writ is wrongfully sued
out.
In this case, the finding for the defendant is, under the
pleadings, in effect, that Morris was the mortgagee of the property
in possession after condition broken and that Gregory had by the
replevin wrongfully deprived him of his possession. That rendered
Gregory liable for such damages, in consequence of his wrongful
act, as were "right and proper" under the circumstances. The
obligation secured by the mortgage or lien under which Morris held
was for the payment of gold coin, or, as was said in
Bronson v.
Rodes, 7 Wall. 229,
"an agreement to deliver a certain weight of standard gold, to
be ascertained by a count of coins, each of which is certified to
contain a definite proportion of that weight,"
and is not distinguishable "from a contract to deliver an equal
weight of bullion of equal fineness." In that case it was held that
judgment might be rendered upon such a contract payable in coined
dollars, but here the suit is not upon the contract for the
recovery of the amount agreed to be paid, but in effect for damages
on account of the wrongful detention of property mortgaged to
secure the debt. Gregory himself asked the court to charge that
"the jury must compute damages and return their verdict in dollars
and cents." This was undoubtedly correct, and it was done;
Page 96 U. S. 625
but he further asked the court to say that
"no agreement or contract to pay a certain number of dollars in
gold can be enforced. The national currency is by law a legal
tender at its face value for all debts and demands, public or
private, except duties on imports and interest on the public
debt."
This was in conflict with
Bronson v. Rodes, and
therefore properly refused.
But the court did say to the jury that if they found the
contract on the part of the plaintiff was to pay a certain sum of
money in gold, they should compute the difference between gold and
currency and render their verdict in dollars and cents in currency,
and in this we see no error. While we have decided that a judgment
upon a contract payable in gold may be for payment in coined
dollars, we have never held that in all cases it must be so. While
gold coin is in one sense money, it is in another an article of
merchandise. Gregory was required to discharge his debt in gold
before he could rightfully take the property into his possession
under the replevin. If the payment had been so made, Morris would
have had his coin at that time to use as money or merchandise,
according to his discretion. But it was not made, and Gregory, by
his wrongful act in taking the property, subjected himself to
damages. If the contract had been in terms for the delivery of so
much gold bullion, there is no doubt but the court might have
directed the jury to find the value of the bullion in currency, and
bring in a verdict accordingly. But we think, as was thought in
Bronson v. Rodes, such a case is not really
distinguishable from this. The question is not whether Gregory had
the right to pay in gold dollars after his debt had become due, but
whether, having wrongfully got the property into his possession
without payment at all, the damages he is required to pay on
account of this wrongful act must, as a matter of law, be estimated
in gold, or whether they may be in currency. We think it clear
that, under such circumstances, it was within the power of the
court, so far as Gregory was concerned, to treat the contract as
one for the delivery of so much gold bullion, and if Morris was
willing to accept a judgment which might be discharged in currency,
to have his damages estimated according to the currency value of
bullion. Certainly if Morris
Page 96 U. S. 626
had in good faith sold the cattle under his power of sale for
currency, and received payment in that kind of money, he would have
been entitled to convert the currency into gold before crediting it
upon his debt. So here, if, with the approbation of the court, he
takes a judgment that may be discharged in currency, the judgment
should be for an amount which would be the equivalent in currency
of the specified amount of coin as bullion. This was the rule
adopted by the court, and we think it correct.
The eighth and ninth assignments of error relate to the form of
the verdict. As has already been seen, where the property has been
delivered to the plaintiff, the jury, if they find for the
defendant, must also find whether the defendant has "the right of
property or the right of possession only." In this case, the
verdict, though for the defendant, is silent upon that point, but
the record shows that by consent the court charged the jury if they
found for the defendants, they should find "that they had the right
of possession only." This cures any defect there may have been in
the verdict in this particular. The whole record must be taken
together, and as the jury did not find to the contrary of the
instruction, the presumption is that they followed it.
All the other assignments relate to the admissibility of
evidence, and as to them it is sufficient to say we are satisfied
with the rulings that were made. Certainly, the instruments in
writing which were objected to were admissible. They tended
directly to prove the defense set up in the amended answer, and no
objection appears to have been made at the trial as to the proof of
their execution. The cross-examination of Gregory, which was
objected to, was clearly legitimate, under the most stringent rules
governing that subject. He had testified that he had purchased the
cattle from Morris. It was clearly proper, therefore, on
cross-examination to ask him if his contract of purchase was in
writing, and if so to identify the paper.
Judgment affirmed.
