
    [Sac. No. 1167.
    Department One.
    September 19, 1905.]
    WARD LAND AND STOCK COMPANY, Respondent, v. GEORGE W. MAPES, Appellant.
    Action for Conversion—Conditional Sale—Evidence—Question for Jury—Support of Verdict.—In an action for the conversion of cattle sold under execution against the party in possession thereof, where there was evidence tending to show that the possessor agreed to feed them, and,to pay for them, if he took them, and that it was agreed that title should remain in the plaintiff until they were paid for, the question whether the sale was conditional or absolute was for the jury, and the evidence is sufficient to support "a verdict for the plaintiff.
    Id.—Instructions not Misleading.—Where the only controversy at the trial related to the question of fact whether there was a condition that the title should not pass until the price was paid or secured, and the court properly instructed the jury upon that question as to the law of conditional sale, and of absolute sale, according as they should find from the evidence what was the agreement of the parties, it must be assumed that other parts of the instructions relative to a “conditional sale” were intended by the court and understood by the jury as referring to the chief subject of dispute, and not to have been too general or misleading.
    Id.—Policy of Law as to Secret Liens—Inapplicable Instruction. —Where there was no evidence in reference to secret liens either by way of pledge or mortgage, an instruction as to the policy of the law on that subject was properly rejected as inapplicable and misleading.
    Id.—Instruction Included in Charge.—Where portions of the instruction refused might properly have been given if severed from the inapplicable part, but such portion was substantially included in the charge, there was no prejudice in refusing the whole of the instruction.
    Id.—Maintenance of Action by Foreign Corporation—Filing of Articles.—Where the plaintiff in the action for conversion was a foreign corporation which had not prior to the commencement of the action filed its articles of incorporation with the secretary of state, it is not precluded from maintaining the action, where it complied with such condition prior tó the filing of an amended complaint.
    APPEAL from a judgment of the Superior Court of Lassen County. F. A. Kelley, Judge.
    The facts are stated in the opinion of the, court.
    
      Garoutte & Goodwin, for Appellant.
    N. J. Barry, for Respondent.
   VAN DYKE, J.

This action was brought to recover the alleged value of cattle sold to the defendant on execution as. the property of E. H. Hamlin, Jr. The plaintiff claimed that the cattle so sold belonged to it, whereas the defendant claimed that the cattle belonged to Hamlin. The verdict in the court below went for the plaintiff, in the sum o„f $4,358.72 1/6, for which sum judgment was thereupon rendered, together with interest and costs. The appeal was taken from the judgment within sixty days upon a bill of exceptions containing the-evidence. The plaintiff is a corporation organized in the state, of Nevada, engaged in the business of raising and selling livestock, particularly cattle. The corporation was managed and controlled byO. W. and A. M. Ward.

In the latter part of the winter of 1900-1901, the plaintiff brought two bunches of cattle to Honey Lake Valley, Lassen County, this state, to be fed for beef and sold. E. H. Hamlin was then engaged in buying beef cattle as the agent of W. & P. Nichols, bankers, of Dutch Flat, Placer County, California, the cattle to be disposed of by Hamlin in certain markets controlled by him. In order to meet the demands of his market it was necessary for Hamlin to secure cattle ahead, place them on feed, and be prepared to meet the demands of his market as they arose. Plaintiff made an agreement with Hamlin in reference to the sale of cattle, and set a price upon the cattle of different grades, arid Hamlin agreed to pay for the feeding of the cattle, and was to have the right to take the cattle out for market in such numbers as he desired, as his needs required; but it is claimed on the part of the plaintiff and respondent that under the agreement made between it and Hamlin, before he took any cattle out of the corral, he should place a check covering the value of the cattle taken out in the Nevada Bank at Reno, Nevada, or pay the amount to one of the Ward brothers; and that it was agreed that the. title to the cattle was at all times to remain in the plaintiff until payment was made by Hamlin, as stated. Hamlin became indebted to the defendant on account of feed sold to him, and thé defendant supposing the cattle in ques-fcion to have .been . bought by Hamlin from the plaintiff, and that they were Hamlin’s cattle, in an action based ■on such indebtedness the cattle were attached and after judgment recovered were sold upon execution,' as already .stated.

The contention on the part of the appellant is, that the sale •of the cattle by the plaintiff to Hamlin was an absolute sale, .and they, therefore, became the property of Hamlin, notwithstanding the purchase price had not been paid. On the trial, in Hamlin’s testimony, he says: “I made no agree.ment to pay for these cattle in ease I did not take them,” and O. W. Ward, one of the managers of the plaintiff, says: '“He agreed to pay for them if he took them.” Whether "the transaction between the plaintiff and Hamlin amounted "to an absolute sale of the cattle, or was a mere agreement to :sell, generally termed a conditional sale, was a question to be ascertained and found by the jury from the evidence produced at the trial. “An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing.” (Civ. Code, sec. 1727.) It is •shown in this case that the plaintiff and Hamlin agreed upon the price of the different grades of stock to be sold, and that when the prices thus fixed should be paid by Hamlin then .such stock so paid for, became his. A similar question arose in Van Allen v. Francis, 123 Cal. 474, [56 Pac. 339], and the •court in discussing that case says: “The nature of the contract between plaintiffs and Van Allen first invites consideration. By appellant it is insisted that it shows an absolute • .sale of the property; by respondent, that the contract is one of conditional sale. We think the latter construction is the true one. Conditional sales are recognized in this state to the fullest extent [citing a long list of cases]. And it is well •settled that even bona fide purchasers from the person to whom the personal property is delivered under an executory •contract of sale get no valid claim to the property” (citing cases). Benjamin on Sales, 320, says: “Where the buyer is by. contract bound to do anything as a condition either precedent or concurrent on which the passing of the property •depends, the property will- not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” Without reviewing the evidence in detail in this case, it is enough to say that it, is sufficient to support the verdict.

Appellant’s counsel in his brief takes exception to instructions given by the court numbered 4, 5, 7, and 8. It is contended that the definition of a conditional sale given in some-of these instructions is too broad and conflicts with that given, in the others, and that the phrase “conditional sale” is used, in others without qualification or definition, and that, consequently, the instructions were misleading and could only-have served the purpose of mystifying the jury. It may be-conceded that if the case involved a contract of sale containing conditions not affecting, or not preventing, an immediate-transfer of the title, and there had been on the trial a controversy over some such conditions, some of the instructions: given would have been confusing, and possibly erroneous.. But the only condition of the contract of sale in question: which was at all important, or about which there was any controversy at the trial, was the condition that the title to-the cattle should not pass to Hamlin until the price was paid or secured. The question of the existence of this condition-was the decisive point of fact in the case to be decided by the jury. Concerning this the court, in instruction 7, properly instructed the jury as follows: “7. If you find from the evidence that the sale of the cattle by plaintiff to Hamlin, was intended, agreed and understood to be a conditional sale,, and that the title to the cattle was not to pass or vest absolutely or unconditionally in Hamlin, then you should find for plaintiff. But if you find from the evidence that it was; intended, agreed and understood by plaintiff. and Hamlin that the title to the cattle was to pass to and vest in Hamlin absolutely and unconditionally, then you should find for the-defendant.” In view of the issues and the evidence given at the trial all the references to a “conditional sale” in the other instructions must have been intended by the court, and would necessarily have been understood by the jury, to refer to the condition concerning the transfer of title, which had been the chief subject of dispute. When so understood, all the instructions on the subject were substantially correct. It must be presumed that the jury was composed of intelligent: men, and as such, they could easily understand the distinction between an absolute sale and one with a condition to be-. complied with before the title passed, to which their attention was called by the instructions.

It is also contended by appellant’s counsel that the court erred in refusing to give the following instruction No. 3 asked by defendant: “3d. The court instructs you that conditional sales as defined by the court are enforced by the courts of this state when clearly established, but that the policy of the-law is against upholding secret liens and charges upon personal property; and that in this state neat cattle can be pledged or mortgaged to secure the payment of a debt upon the observance by the parties of certain formalities designed by the law to insure good faith and to give notice to the world of the character of the transaction. These provisions are, as. to pledge, that the party to be secured must retain the possession of the property pledged, or some person other than-the pledgeor, must retain such possession for him; and as. to a mortgage, that it must be "signed and acknowledged by the mortgagor and must have attached thereto an affidavit by the mortgagor and mortgagee that the same is made in good faith and without any design to hinder, delay or defraud creditors of the mortgagor, .and it must be immediately recorded with the recorder of the county in which the property affected is situated. These provisions cannot be evaded by any mere shuffling of words. And, therefore, the court instructs you that where it is clear from the whole transaction that the ownership of the property was intended to be transferred for all practical purposes, and that the seller only intended to reserve a security for the price, any characterization of the transaction by the parties, or any mere denial of' its legal effect, will not be regarded. The question, it is true, is one of intention, but the intention must be collected from the whole transaction, and not from any particular feature-of it; and if you believe from the evidence that the Ward Land and Stock Company intended by its agreement to transfer to E. H. Hamlin, Jr., or through him to W. &. D. Nichols, the ownership of the cattle on the James Mapes place for all practical purposes, and that its intention in making the agreement was only to reserve a security for the price, then the-court instructs you that title passed from the corporation and you must find for the defendant. ’ ’

A great portion of this offered instruction is taken up-with a statement concerning the policy of the law in reference to secret liens and charges upon personal, property, and . the requirements of the- law in reference to chattel mortgages ■or pledges of personal property as security for indebtedness. These questions are entirely outside of the evidence in the case, and calculated to mislead the jury. The policy of the law in reference to any particular question may aid the court in its interpretation or construction of the law in any ques- , tion that may arise in any case before it; but this is not the duty of the jury. It is the province of the jury to arrive at and determine the ultimate facts from the evidence produced in the case. Portions of the instruction in question, if detached from the objectionable portions referred to, might have been properly given, but they are embraced substantially in those given, and, consequently, the appellant suffered no harm in the refusal of the judge to give the instruction in question.

The plaintiff, as already stated, is a corporation organized in the state of Nevada and is a foreign corporation as to this state, and had not filed its articles of incorporation in this state, as required of foreign corporations, prior to the commencement of the action, but it did do so prior to filing its amended complaint. The language of the law is that a . foreign corporation which has not complied. with said act shall not “maintain or defend any action or proceeding in any court of this state until such corporation shall have complied with the provisions of section one of this act.” Upon this state of the case, appellant contends that a compliance with the act in question is a condition -precedent to the commencement of the action, and therefore that the action should have been dismissed. This question, however, was directly decided by this court adversely to the contention of appellant in California Sav. and Loan Soc. v. Harris, 111 Cal. 133, [43 Pac. 525]. In the opinion in that case it was said: “At the commencement of this action the plaintiff had not filed the . certified copy with the county clerk of Madera County, but it did file it with that officer several months before defendant filed his amended answer, setting up this defense, so that at the time this defense was pleaded by the defendant, the plaintiff had complied with the statute. The defense pleaded by the defendant was, therefore, unavailing to him to-prevent the plaintiff from thereafter maintaining the action. Section 299 (Civ. Code) does not declare that the plaintiff shall not commence an action in any county, unless it has filed a certified •copy in the office of the county clerk, but merely declares that it shall not maintain an action until it has filed it. To maintain an action is not the same as to commence an action, "but implies that the action has already been commenced. ’ ’ -Appellant’s counsel intimate that the case just cited was not well considered, and suggest that the subsequent case of Keystone etc. Co. v. Superior Court, 138 Cal. 738, [72 Pac. 398], practically overruled the former case. This latter case involved a different question, however. The Paraíso Oil Company, a foreign corporation, had filed its petition in voluntary insolvency in the superior court of the city and county •of San Francisco, and the Keystone Driller Company, its creditor, made application for a writ of prohibition to prohibit the superior court from entertaining said petition in insolvency, or acting upon the case. In the opinion, passing upon the question, it is said: “By the very terms of the Insolvent Law, a corporation whose residence is outside of "the state, cannot become a voluntary insolvent inasmuch as the petition must be filed in the county in which the petitioner resides. (Insolvency Law, see. 2.) This privilege of becoming a voluntary insolvent can be availed of only by a resident of the state, whether a natural or artificial person. The act itself declares that it is for the relief of insolvent debtors, as well as for the protection of creditors. The state is under no • obligations to relieve a foreign corporation from its obligations, particularly of a class of the Paraíso Oil Company, very appropriately designated by counsel as a ‘tramp corporation. ’ The only mention of ‘foreign corporations’ that is made in the Insolvency Law is in section 16, which is part -of chapter third, entitled ‘Involuntary Insolvency.’ ” And it was held that said foreign corporation could not become a voluntary insolvent, and that the superior court of the city • and county of San Francisco had no jurisdiction to entertain its petition in that behalf, or to proceed further in the matter, and this court, therefore, ordered a peremptory writ of prohibition to issue. The case of the California Sav. and Loan Soc. v. Harris, already cited, was not referred to in the latter •case, and there is nothing to show that there was any intention to overrule or qualify it. In Ryan Live Stock etc. Co. v. Kelly, (Kan.) 81 Pac. 470, decided August, 1905, by the supreme court of Kansas, the same question was raised as in the case at bar, and the court there say: “The plaintiff in this case is a private foreign corporation, and it was conceded upon the trial that it had not at the commencement of the action complied with the corporation laws of the state of Kansas; but it was proven that prior to the trial in the case it had complied therewith, and had received a certificate from the secretary of state evidencing that fact. The sole question presented in this case is whether the corporation, not having filed a statement and procured the certificate required by law before the commencement of the action, could comply with the law thereafter and maintain the action. The court below decided this question in' the negative, and dismissed the action. Its judgment is reversed.” (Citing in support of the opinion a number of cases to the same point.)

The court therefore had jurisdiction to try the cause.

Judgment affirmed.

Shaw, J., and Angellotti, J., concurred.

Hearing in Bank denied.  