Burton v. Winsor Utah Silver Mining Co.

EMKesoN, Associate Justice,

delivered the opinion of the Court:

This is a case of two creditors, each endeavoring to secure his debt out of the same property, one by attachment, the other by a purchase of the property; and the question in the case is, was there a sale and delivery of the property to the appellants. The property which is the subject of this litigation is lead bullion, manufactui’ed. by and at the works of the Saturn Mining Company. The respondents were respectively sheriff and deputy sheriff of Salt Lake county. The. respondent, Dewey, as deputy sheriff had seized the property on a writ of attachment in favor of the First National Bank against the Saturn Silver Mining Company, and took the same into his actual possession, and it remained in his possession until taken by the Territorial marshal on a writ of replevin in favor of the Winsor Utah Silver Mining Company and Blue Jacket Mining Company, and against these respondents. The claim is that the property had been sold and transferred to the plaintiffs in the replevin suit, previous to the levy by the respondents under the writ of attachment. Judgment was obtained by the plaintiff in the attachment suit, and now these respondents bring suit to recover the value of the bullion levied upon by the deputy sheriff, and taken from his possession by the appellants.

We see no objection to the joining of the respondents in bringing this suit. The sheriff and his deputy are jointly and severally liable for the acts of the deputy. They may jointly maintain an action for property levied upon by the deputy and in his possession.

The appellants claim that the court erred in permitting Tiernan to testify as to the declarations of Crossett. Crossett was an agent and servant of the debtor corporation and in charge of the property. The evident object of the testimony was to furnish a link in a chain of evidence to show that the title to the property mentioned was still in the corporation. True it was his declaration which was sought to be proved, but his declaration about the property in his charge and custody. According to the testimony when the property was sold an order would be drawn upon him, for the property, in favor of the vendee. His declaration was simply evidence tending to show that it had not up to that time been sold, and certainly that it had not then passed out of the possession of the corporation for which he was acting. It is true the evidence was not conclusive that it had not been bargained by some other agent of the corporation. His statement was in substance that it was for sale, that his principal was anxious to realize upon it, and as has been stated it was in his possession and charge. The declaration was made while he was acting within the scope and bounds of his authority, and was competent to be given to the jury, as evidence tending to show that no sale of the property had been completed up to that time.

The next error assigned is as to the admission of the testimony of witnesses as to whether the alleged sale and delivery was made in the usual and ordinary manner of tiie vendor in selling that class of property. The question arose in the cross-examination of appellants’ witnesses. They had been put upon the stand by them to establish the sale and delivery, and the respondents had a right by cross-examination to the fullest investigation upon those points, and in doing this had a right to inquire, and to know whether the mode and manner alleged to have been adopted in this case, was the one usually adopted by them. It was calculated to characterize the bona fieles of the transaction, and was competent testimony for the jury to weigh in determining whether there was an actual sale and delivery.

The written memoranda was properly rejected. It was signed by no one, and was a mere memoranda made by the witness. It might be referred to by him to refresh his recollection, but was not itself competent evidence.

The law as applicable to this case was correctly laid down, by the court in its instructions given, nor do we see any error in refusing to give those claimed to the appellants

SohaeffbR, O. J., and BokbMAN, J., concurred