ON REHEARING.
Respondent asks a rehearing upon the last proposition discussed in the foregoing opinion, and in an erudite petition he seeks to show that there was no evidence of possession upon which appellants were entitled to go to the jury. The question of possession is a question of fact, to be decided, ordinarily, by the jury. Whether or not there is any evidence in a case upon which a jury would be warranted in finding possession in a designated party is a preliminary question upon which the Court may properly pass. But the fallacy in respondent’s reasoning consists in the fact that he *472constantly places upon the testimony the most favorable construction that it will bear for respondent, and from that standpoint insists there is no evidence in the case upon which the appellants were entitled to the verdict of a jury, forgetting that it is our duty to place upon the testimony the most favorable construction for appellants that it will bear, and to regard all those facts as established which the evidence tends to prove. We do not care to add to what we have said concerning the admissibility in evidence of Exhibit 82. It was not intended to convey title, or to convey a right to a lien. The rights to the lien already existed, if once the factor came into possession. The evidence on that point is overwhelming, and the exhibit tends strongly to prove that the Beasleys had surrendered their possession and all right to control. It may be true that when it was executed both appellants and the Beasleys supposed that appellants were already in possession under the bill of lading. We have held that, as matter of law, they were mistaken in that; but that did not prevent appellants from subsequently acquiring possession, or the Beasleys from surrendering possession. The evidence tends to show that they executed the exhibit as evidence of such surrender, .and it should be given effect accordingly. We have said that the factor’s possession must be exclusive, but that does not mean that it must be actual and personal. Delivery by the owner to any person for the factor enables the factor’s lien to attach at once, whether the delivery be to a common carrier, ship owner, warehouseman, or agent, x Jones, Liens, § 460. And the delivery may be constructive as well as actual. “It is only necessary that the goods should be so appropriated to the factor that they are assuredly under his control.” Id. § 461. Learned counsel cite the case of Flanagan v. Wood, 33 Vt. 333. The first paragraph in that opinion declares: “The doctrine that an actual and visible change of possession must accompany every attachment and transfer of personal property was early adopted in this state, and has been steadily adhered to. It has been treated as our settled policy, and the business habits of our citizens have been conformed to it. Under our system of attachment, its practical application is of frequent occurrence, and numerous decisions of our courts have defined and illustrated its operation. From a rule of law so well settled, and so well understood and relied upon by the community, we are not at liberty to depart. The decisions in this state must therefore be our guide, and we can derive but little aid from the decisions which in other states and in England have materially qualified or altered the law in this respect.” The Court then proceeds to hold, in a case where the facts are somewhat exceptional, but could rea,dily be distinguished from the case at bar, that there was not that actual and visible change of possession which their law required. The case of Gray v. Corey, 48 Cal. 208, is also cited. The case is exceptional in its facts, and probably would not be followed now. It arose between a vendee and a creditor under a statute which declared all transfers of personalty fraudulent as to creditors, unless *473followed by actual, immediate, and continued change of possession. These cases are not here applicable. A factor’s lien depends upon the fact of possession, and not the appearance. Rev. Codes, § 4836. Our statute is like that of New York, and there it is held that possession means “such control of, or dominion over, merchandise as enables a factor rightfully to take it into actual custody without the aid of any new authority or document furnished by the owner.” Pegram v. Carson, 10 Bosw. 505- The rule as between a vendee and creditor has been stated by this Court as follows: “What the law requires, and all the law requires, is that the conduct of the parties should clearly show a relinquishment of ownership and possession, and all right of control on the part of the vendor, and an assumption of ownership, possession, and control on the part of the vendee.” Morrison v. Oium, 3 N. D. 76, 54 N. W. Rep. 288. How stood the parties under the evidence? That the Beasleys had surrendered all legal right to possession and control must be conceded. We think it must also be conceded that, the Beasleys having surrendered the right of possession and control to appellants, appellants had the legal right to take the property into actual custody without the aid of any new authority or document from the Beasleys. Had appellants done so? We undertook in the original opinion to show that such was the tendency of the evidence. Counsel insist that what was done by way of driving the sheep in was done in pursuance of the orders of the Beasleys. Possibly the evidence may bear that construction; but it will certainly bear the construction we gave it, and duty compels us to adhere to it. It is urged, however, that, as matter of law, the possession remained in the Beasleys, because the same -herders (Beasleys’ servants, it is claimed) that had been in possession remained in possession, and in this connection counsel rely upon Flanagan v. Wood and Gray v. Corey, in both of which the fact that the former servants of the original owner remained in charge was held to preclude the claim that there had been any visible change of possession. We have endeavored to show that the matter of visible change does not apply in this case or in -this state. As between a vendee and an attaching creditor, an entire want of. change of possession would not be conclusive as against the vendee. Rev. Codes, § 5053. A factor is in a worse position than a vendee, in that his lien depends upon possession; but, so far as visible appearances are concerned, he should be in no worse position, and the bona fides as between the Beasleys and appellants cannot be questioned upon this record. But were these herders the servants of the Beasleys? It does not appear that respondent knew they were or had any reason to so suppose. But it does appear, and must be held as established, that these herders had been employed by the Beasleys for appellants in April, and had so continued, and appellants paid them for their services during all that time. They never were the Beasleys’ servants after they came into this state. *474The fact that we hold that the sheep were in the possession of the Beasleys for a certain term does not change the contract of employment with the herders. But we are not prepared to go upon record as holding that, if these herders were in the Beasleys’ employ up to August 4th, and were found on August 7th, with the same sheep in their possession, many miles distant from the place where they were on the 4th, such fact establishes, as matter of law, that there had been no change in the possession of the.sheep. Rehearing denied.
(79 N. W. Rep. 987.)