Opinion
No. 38502.
Filed February 16, 1973.
1. Bailments: Contracts. Generally, an agreement to return the identical property makes the contract one of bailment and not of sale, and the title to the property is not changed. 2. ___: ___. It is of the very essence of a contract of bailment that it shall contemplate the return of the property bailed. 3. Bailment: Words and Phrases: Contracts. The term "bailment" is comprehensively defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be.
Appeal from the district court for Dakota County: JOSEPH E. MARSH, Judge. Reversed and remanded.
Bauer, Galter Scott, for appellant.
Duane J. Dowd of Riedmann, Dowd Jeffries, for appellees.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
This is a replevin action brought by Agnes Simpkins to recover the possession of a horse named Cider Dave from Kate and Jack Ritter, wife and husband. Simpkins appeals from a judgment denying restitution of the horse and damages. We reverse.
The following questions are presented by this appeal: 1. Was the conveyance of Cider Dave to Kate Ritter an outright and unqualified conveyance of title and ownership, or was a bailment created with a reversionary interest reserved in Agnes Simpkins? 2. If a bailment was created, then was Cider Dave to be returned to Simpkins at the end of the 1971 racing season; or was such return to be made when the horse was 12 years old, no longer raceable, or on the death of Kate Ritter?
Simpkins, who is employed in Lincoln, breeds and raises thoroughbred race horses. Kate Ritter is a groom and housewife. Jack Ritter is a horsetrainer and a plater. A groom is one who cares for horses, and a plater is one who shoes horses. The Ritters, who had been training horses for a number of years, trained horses for Simpkins on previous occasions. There was no relationship between the parties other than friendship.
During the 1970 racing season discussions were had between Simpkins and Kate concerning the taking and training of Cider Dave. In January of 1971, Cider Dave was sent from the Simpkins farm in Raymond, Nebraska, to the Ritter farm at Anthony, Kansas. On January 27, 1971, after Cider Dave had been sent to Kansas, Simpkins, pursuant to a phone request, signed the jockey club certificate of foal registration in blank, and mailed the certificate by certified mail to Kate. Kate placed her name on the certificate as the transferee, and inserted the date of transfer as June 8, 1970.
Simpkins' testimony indicates she transferred the horse to the Ritters for the 1971 racing season, at the end of which time it was to be returned to her. She did this because she was unable to train or race the horse. She testified that the Ritters were to pay the entire cost of Cider Dave's upkeep, and in return they were to receive all his earnings.
Kate conceded she paid nothing for the horse, but alleges it was given to her with the intention that she was to be its sole owner. However, she did admit Cider Dave was eventually to be returned to Simpkins. The area of the disagreement involved was when that return was to take place. Was it at the end of the 1971 racing season, or, as Kate contended, not until she was through with him? This she interpreted to be when the horse was 12 years old and no longer raceable; if he broke down; or if something happened to her.
Simpkins contended the transfer of the certificate of foal registration was made in order to permit Kate Ritter to race the horse during the 1971 racing season. She adduced other evidence indicating that such arrangements are frequently made in the racing business. Under her theory, the transfer was not made for the purpose of transferring ownership, but only for the limited purpose of permitting Kate to race the horse and retain all earnings during the period that the bailment was to be in effect.
It is undisputed the horse was to be returned at some time to Simpkins. It is also undisputed Simpkins had refused to sell the horse. It tests credulity to believe that under the circumstances she would give the horse to Kate for its entire racing life. The testimony of Simpkins is much more within the range of believability.
Generally, an agreement to return the identical property makes the contract one of bailment and not of sale, and the title to the property is not changed. 8 Am. Jur. 2d, Bailments, 22, p. 927. As we said in Luikart v. Massachusetts Bonding Ins. Co. (1935), 129 Neb. 771, 263 N.W. 124: "`It is of the very essence of a contract of bailment that it shall contemplate the return of the property bailed, * * *.'"
The trial court ignored the bailment characteristics of the transaction. Relying on the foal certificate and the racing entry, the trial court found Kate Ritter to be the owner of the horse. However, the transfers are entirely consistent with the delivery of possession for bailment purposes.
In Mimick v. Beatrice Foods Co. (1958), 167 Neb. 470, 93 N.W.2d 627, we said: "The term `bailment' is comprehensively defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be."
We conclude the transfer herein was a bailment. It therefore follows that title and ownership remained in the bailor Simpkins. For this reason the trial court's findings that title was in Kate Ritter was in error.
Judgment reversed and cause remanded, with instructions to enter judgment for possession in favor of Agnes Simpkins.
REVERSED AND REMANDED.