
    Andrew J. Grinnell vs. Emma L. Young and Husband.
    July 3, 1889.
    Replevin — General Averment of Title — Evidence that Bill of Sale-was mere Escrow. — In an action of claim and delivery, each party alleging generally ownership and right of possession in himself, where the defendant, in support of his claim, introduces in evidence what purports-to be a bill of sale from plaintiff, the latter may prove in rebuttal that-there had never been in fact any sale or delivery of the property; that the bill of sale had been signed to be placed in escrow until a proposed trade-had been completed; and that the person named as vendee therein had-fraudulently and unlawfully obtained possession of it.
    This action was brought in the district court for Hennepin county, and tried before Young, J., and a jury, who found plaintiff entitled to possession of the property, and its value to be $2,410.16. Defendants-having moved for a new trial, the motion was denied on plaintiff consenting to a reduction of the verdict to $2,000, and the defendants-appealed.
    
      E. A. Campbell and J. E. Waters, for appellants.
    
      Howard é Richardson, for respondent.
   Mitchell, J.

This was an action of claim and delivery, the plaintiff alleging generally that he was the owner and entitled to the possession of the property which the defendants had wrongfully taken. The defendants in their answer denied plaintiff’s right, and alleged generally that they were the owners and entitled to the possession. Upon the trial defendants introduced a series of bills of sale, commencing with one from plaintiff to one Pomeroy, and constituting an apparent paper title in the defendant Emma L. The plaintiff then introduced, under defendants’ objection, evidence showing that there never had in fact been any sale or delivery of the property by him to Pomeroy; that they had entered into an executory contract for the exchange of this property for certain real estate to be conveyed by Pomeroy to plaintiff; that in view of this the bill of sale had been drawn up and signed by plaintiff, and handed to Pomeroy to be by him left in escrow with one Gannon until he (Pomeroy) executed the deed to plaintiff, when the papers were to be exchanged, and the property delivered; that instead of doing this Pomeroy, without authority, filed the bill of sale with the city recorder, and did not and never has executed the deed to plaintiff; that' the property in controversy — a stock of drugs — was never delivered to Pomeroy, but remained in plaintiff’s possession until Pomeroy and the defendant Eugene M. Young went to the store where the goods were in charge of plaintiff’s clerk, and, in plaintiff’s absence, took possession, and excluded the plaintiff by putting a new lock on the door. This evidence was admissible under the pleadings. Had there been a sale and delivery in fact, which plaintiff was seeking to avoid on the ground of fraud, then the fraud should have been pleaded. But the effect of the evidence in this ease was to prove that there had never in fact been any sale, but that Pomeroy had wrongfully possessed himself of an apparent muniment of title, which had never been delivered. As this evidence was wholly uncontradicted, and nothing was proved .which would create an estoppel against plaintiff, the court would have been justified in directing the jury, as he in effect did, to find a verdict for the plaintiff.

Exception was taken to the action of the court in permitting evidence as to the value of the stock at the time an invoice was taken, about a year before the suit was commenced. It appears that it was the last inventory taken by plaintiff, and that after the action was brought defendants rebonded the property and retained the posses•sion. Plaintiff also testified that the purchases added to the stock after taking this invoice were equal to or exceeded the sales. It would seem therefore that this evidence was the best which it was in the power of plaintiff to produce, and, under the peculiar circumstances of the case, we do not think there was any error in admitting it. We think that plaintiff, being the owner of the stock, who had purchased it in the market, and who took the inventory, showed himself competent to testify as to its value, although not a professional druggist. This covers all the assignments of error requiring any special notice.

Order affirmed.  