
    CASPER MOTOR COMPANY vs. J. L. MARQUIS
    (No. 1093,
    March 3, 1924;
    223 Pac. 764.)
    Sales — Conditional Sales — Eights op Attaching Creditors op Yendee — Knowledge op Contract — Notice—Appeal and Error-Exception to Excluded Evidence Not Available Without Offer op Proof.
    1. Except as otherwise provided by statute, in sales of personal property, when by the terms of the contract of sale title does not pass until payment is made and the property in the meantime is to remain the property of vendor, who may on default repossess himself thereof, vendor may reclaim it, though it be in the hands of ’a third party who takes it in good faith and without notice.
    2. Comp. St. 1920, § 4713, providing that no sale wherein the transfer or title of ownership of personal property'is made to depend upon any condition shall be valid! against any purchaser or judgment creditor of vendee without notiee unless the instrument is in writing and duly filed of record, is inapplicable to a!n attaching creditor of 'a vendee with notice of a conditional contract of sale, though it is not filed of record.
    3. The burden of proof to show want of knowledge of a conditional contract of sale on the part of 'an attaching creditor of the vendee is upon him or the party representing him.
    4. In an action by vendor to recover possession of an automobile sold under a conditional contract of sale against an attaching creditor of vendee, exclusion of a question to the attaching creditor asking him whether he had any knowledge of the contract was not available as error, where there was no offer to prove what the question would have elicited.
    Appeal from District Court, Natrona County; Cyrus 0. BRown, Judge.
    Action by the Casper Motor Company against J. L. Marquis, Sheriff, to recover possession of property taken under attachment. Judgment for plaintiff and defendant appeals.
    
      
      A. G. Vanatta for Appellant.
    The law governing conditional sales appears at Sections 4713-14 Comp. Stats.; a general provision relating to the filing of instruments intended to operate as a mortgage of personality appears at Sections 4687-88 Comp. Stats.; the transaction here involved a note and an instrument given to secure it; it was not a con ditonal sale but an absolute sale, secured by chattel mortgage; there was no affidavit to give it validity as a conditional sale; there is no evidence that the attaching creditor or any one else had notice, McLeod signed the notice and registered the car in his name as owner in accordance with law, 3476-3484 C. S.; if the instrument was intended as a conditional sales contract it was void, Furniture Co. v. Opera House Co., 11 Wyo. 144; 70 Pac. 838, 72 Pac. 687; Crumrine v. Beynolds (Wyo.) 78 Pac. 402; Studebaker Co. v. Mau, 14 Wyo. 74, 82 Pac. 2; no demand was made before suit; the. most that can be said for the instrument is, that it is an unrecorded chattel mortgage and void as to creditors and purchasers in good faith. The judgment should be reversed.
    
      Hal Curran and Nichols <& Stirrett for Respondent.
    The evidence shows the transaction to be a conditional sale under which vendor reserved title; the instrument was not filed or placed of record, the attaching officer was notified that the automobile was not the property of McLeod prior to levy, Wyoming cases cited by appellant are not in point; an attaching creditor is not a purchaser or judgment creditor; one claiming property in the face of a conditional sales contract must be without notice or knowledge of the claim of the third party; this places the burden of proof on claimant; appellant failed to prove absence of notice or knowledge of respondent’s interest, but relied solely on fraud which he failed to prove.
   Blume, Justice.

The Casper Motor Company, plaintiff and respondent here, brought an action in the district court of Natrona County against J. L. Marquis, as Sheriff of said Cotrnty, defendant and appellant, in order to recover possession of a certain Buick automobile, which the said sheriff had then in his possession pursuant to a writ of attachment issued in a case wherein Joe Rodish was plaintiff and one George McLeod was defendant. Judgment was rendered in the lower court in favor of the plaintiff and respondent herein, from which defendant herein appeals.

The Motor Company claimed the property in controversy pursuant to a written conditional sales contract introduced in evidence, made with George McLeod, which provides that the title to said automobile was not to pass to the purchaser, but was to remain in said motor company until the car was fully paid for, with the right to take possession thereof upon default in payment or whenever it was taken under execution or attachment. It is not disputed and the testimony shows that at the time of the seizure of the property by said sheriff, there was then due and owing thereunder to the respondent the sum of $600 and interest thereon, and hence the default clause in said contract came into operation at the time of the attachment herein. The contract was not, however, placed of record, and the contention herein is as to the effect of that fact and as to the burden of proof on the question of knowledge. Except as otherwise provided by statute, 'in sales of personal property, when by the terms of the contract of sale the title does not pass until payment is made, and in the meantime the property is to remain the property of the vendor, who in case of default has the right to repossess himself thereof, the vendor may reclaim it, even though it be in the hands of a third party who takes it in good faith and without notice. Grand Rapids Furniture Co. vs. Grand Hotel & Opera House Co., 11 Wyo. 128, 144, 70 Pac. 838, 72 Pac. 687. But by section 4713, W. C. S. 1920, it is enacted that “no sale, contract or lease wherein the transfer or title of ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in possession, without notice” unless the instrument is in writing and duly filed of record. The section further provides that "all such sales or transfers shall cease to ,be valid against purchasers in good faith, or judgment or attaching creditors without notice at the expiration of one year from the date of such sale” unless an affidavit of renewal is filed within the time and in the manner specified. It is contended that under this statute all conditional sales’ contracts are valid, for one year, without being filed of record, except only as to purchasers and judgment creditors without notice, and that this rule applies in the case at bar because the contract here involved was made on May 22, 1921, while the action herein was commenced on January 12, 1922. We need not, however, decide this point, but it is at least clear that a creditor with notice cannot by attachment require a superior right over the holder of such contract not of record. It has been settled in the ease of Crumrine vs. Reynolds, 13 Wyo. 111, 78 Pac. 402 that the burden of proof to show want of knowledge of such contract on the part of the attaching creditor is upon him or upon the party representing him. The appellant has wholly failed to sustain this burden, and apparently no attempt was made to do so. Joe Rodish, the attaching creditor, was a witness in the ease, yet he failed to testify that at the time of the attachment he had no knowledge of the existence of the contract in question. That fact would seem to show that he had knowledge thereof. True, he was asked questions as to whether George McLeod, during the time that the latter was in control or possession of the automobile said anything as to who was the owner thereof. An objection to the question was sustained and that ruling is assigned as error. It does, not appear what would have been the answers. For aught the record shows, the witness would have testified that McLeod told him of the existence of the contract. No offer-was made indicating, what the testimony of the witness, would have been. We need not determine whether, if an offer had been made to show by the witness that McLeod. claimed to be the exclusive owner thereof, the testimony offered would have been competent, although we might add that such testimony alone would not have been sufficient in itself, since information of the existence of such contract might have been conveyed to Rodish from many other sources. But as stated, no such offer was made. Elliott on Appellate Procedure, Sec. 743, states the rules as follows:

“In the examination in chief the exclusion of testimony is not available as error unless the party makes an offer to prove the facts which he assumes that his question will elicit. Where an objection is properly interposed more must be done, in cases where the objection is sustained, than to ask the question; the party producing the witness and insisting upon the question must state what he proposes to prove by the witness. ’ ’

To the same effect see 4 C. J. 759; McGinnis v. State, 4 Wyo. 115, 122; 31 Pac. 978; 53 Pac. 492; Jenkins v. State, 22 Wyo. 34, 58; 134 Pac. 260, 135 Pac. 749; Stickney v. Hughes, 12 Wyo. 397, 409; 75 Pac. 945; Padgett v. Guilmartin, 106 Tex. 551, 172 S. W. 1101. An exception to the rule was made in McGinnis v. State, supra, where a witness offered was rejected as incompetent to testify; and other exceptional circumstances might require a modification of the rule, but that is not true in the case at bar.

We find no error in the record and the judgment of the trial court should be affirmed. It is so ordered.

Affirmed.

Potter, Ch. J., and Kimball, J., concur.

NOTE — See 3 C. J. p. 825; 35 Cyc. pp. 680, 682, 709 (1925 anno)  