Page:North Dakota Reports (vol. 3).pdf/117

 The delivery of a bill of sale and of the key to a warehouse in which the goods are stored is an immediate delivery of the goods. Teidman on Sales, 106; Bruns v. Hatch, 19 Pac. Rep. 482; Pearson v. Quist, 44 N. W. Rep. 217; Ross v. Sedgwick, 69 Cal. 247; Pope v. Cheney, 68 la. 363; Hart v. Mead, 84 Cal. 244. Slight evidence of actual delivery has been allowed to protect the rights of the purchaser, 8 Am. and Eng. Enc. Law 885, Russel v. O’Brien, 127 Mass. 349; Thomdye v. Bush, 114 Mass. 116; Jugalls v. Herrick, 108 Mass. 351.

Bartholomew, J. Plaintiff and respondent claims certain personal property as vendee. Defendant and appellant, as sheriff, claims possession of the same by virtue of an attachment against the property of respondent's vendor's. Respondent, in his complaint, claimed title through a bill of sale executed and delivered on November 9th, 1887. At the hearing, against appellant's objections, respondent was permitted to give evidence of an oral contract of sale made at an earlier date, and delivery of possession thereunder. This is assigned as error. If so, it is without prejudice. It is undisputed that a bill of sale was executed and delivered on November 9th, and that the attachment was not served until November 10th, and the same delivery of the property that was made under the oral contract of sale continued under the written bill of sale. If the prior delivery was good, no further delivery was required. Shurtleff v. Willard, 19 Pick. 210; Lake v. Morris, 30 Conn. 201. At the close of the testimony, appellant requested the court to take the case from the jury, and direct a verdict in his favor. This the court refused to do, but directed a verdict in respondent’s favor. The case turned upon the question of delivery, and the court ruled that, under the undisputed facts, there was a legal delivery. This is alleged as error, and to that point appellant's main argument is directed. The property in controversy consisted of buggies in what the witnesses call a “knock down” condition, meaning that the various parts were in the boxes and crates in which such property is usually shipped. The delivery consisted in taking respondent's