
    A. K. HANSEN AND ANOTHER v. R. S. SHEPHERD.
    
    January 12, 1923.
    No. 23,275.
    Plaintiffs not the owners of Transport trucks and not entitled to recover for their conversion.
    1. Evidence considered and held to support the finding that plaintiffs were not the owners of the property in question, and therefore were not entitled to recover.
    Rulings on evidence correct.
    2. There was no error in the rulings on the admissibility of evidence.
    Action in the district court for Pipestone county to recover $6,000 for conversion of two Transport trucks. The case was tried before Nelson, J., who made findings and ordered judgment in favor, of defendant. From an order denying their motion for amended findings and conclusions or for a new trial, plaintiffs appealed.
    Affirmed.
    
      Milo L. Meeker and Krause & Krause, for appellant.
    
      Canfield & Michael, for respondent.
    
      
      Reported in 191 N. W. 599.
    
   Quinn, J.

Action for the conversion of two Transport trucks, the sole issue being whether plaintiffs became owners of the same through an alleged purchase from one S. J. Bim on December 21, 1920. The cause was tried to the court and findings were made to the effect that plaintiffs were not and never had been the owners of the property, and judgment for costs was ordered in favor of the defendant. From an order denying their motion for amended findings or for a new trial, plaintiffs appeal.

In April, 1920, the King Auto Company was engaged in wholesaling Transport trucks at Mitchell, South Dakota. On the twenty-sixth day of that month that company entered into an agreement with Bim, who operated a garage known as the Motor Inn at Jasper, in Pipestone county, Minnesota, to sell such trucks in Rock, Lincoln and Pipestone counties, Minnesota, and in certain specified territory in South Dakota; that, at the time of entering into such agreement, Bim signed an order for 8 trucks to he driven from Mitchell to Jasper by May 15, 1920; that 4 of such trucks, including the two in question, were so delivered to Bim at Jasper in June of that year; that in October Bim sold the Motor Inn to the plaintiff Hansen and one Boehmke, and shortly thereafter Boehmke sold his interest therein to Harold Hanson, who thereafter managed the same for himself and the plaintiff Hansen; that when he sold the Motor Inn, Bim had on hand the two trucks in controversy, one of which he stored in the Motor Inn. The other he removed to his place of business at Trosky, Minnesota.

On December 2, 1920, the defendant, as sheriff of Pipestone county, levied upon and took into his possession, under a writ of attachment issued against the King Auto Company, the two trucks in question, and stored the same in the Motor Inn at Jasper for safe keeping. Subsequently a judgment was obtained against the King Auto Company in the attachment proceeding, and on February 19, 1921, an execution was issued thereon and placed in the defendant’s hands for collection. On March 9, 1921, he sold the trucks at execution sale, whereupon he paid to the owners of the Motor Inn the sum of $80 for bringing the one truck from Trosky to Jasper and for storage on the two trucks under attachment.

On March 4, five days before the execution sale, plaintiffs caused a notice and demand for possession of the trucks to be served on defendant, claiming to be the owners of the same under and by virtue of a purchase from Bim on December 21, 1920. A reading of the agreement of April 26, and the order for 8 trucks t>yr Bim, discloses that it was not the intention of the parties thereto that title to the trucks should pass until they were paid for. The contract specifically provides that the company will ship vehicles to Bim, with sight draft against bill of lading attached, to be paid, with exchange, upon presentation. Under such circumstances, it is clear that the intention was that the consignor retain title to tbe property until the same was in some way settled for by tbe consignee. The contract gave to tbe grantee only tbe right to sell in certain prescribed territory. It does not purport to convey any tangible property whatever. Under such a contract the mere shipping of tbe property will not vest title in tbe consignee, nor divest tbe consignor of title.

Tbe defendant testified at tbe trial, in effect, that be had a conversation with Mr. Bim shortly after the attachment levy, in which be told Bim of tbe attachment and asked bim whether be bad any claim on tbe trucks, and that Bim said in reply that be did not, that be bad never accepted them, and that they belonged to tbe King Auto Company. Bim being in lawful possession of tbe vehicles, this testimony was competent. Elwood v. Saterlie, 68 Minn. 173, 71 N. W. 13; Lehmann v. Chapel, 70 Minn. 496, 73 N. W. 402, 68 Am. St. 550; McDonald v. Bayha, 93 Minn. 139, 100 N. W. 679. Tbe witness Iverson corroborated tbe defendant to tbe effect that Bim told bim that be bad never accepted tbe trucks. In giving bis testimony, Bim’s memory was, to say tbe least, very faulty. He was unable to say whether be bad ever bad such a conversation with tbe sheriff. He denied knowing, until shortly before the sale, that the trucks had been attached, in tbe face of the undisputed evidence that they were taken from bis possession, and were of tbe alleged value of $6,000. It. is not claimed on behalf of tbe plaintiffs that, at tbe time of tbe attachment, Bim bad in any way settled with or paid tbe King Auto Company for tbe trucks. Tbe proofs are altogether ample to warrant tbe findings that tbe plaintiffs were not tbe owners of the trucks and therefore were not entitled to recover.

It is unnecessary to review tbe other questions discussed in tbe briefs, as tbe foregoing disposes of tbe case.

We find no error in tbe rulings upon tbe admissibility of evidence.

Affirmed.  