Carlyon v. Lannan

4 Nev. 156 | Nev. | 1868

By the Court,

JOHNSON, J.

This appeal is from the order of the Court below refusing a new trial, and from the first judgment in the case, on the grounds : First. Insufficiency of the evidence to justify the verdict, and that it is against law. Second. Error in law occurring at the trial and excepted to by defendants.

The questions of fact involved in the pleadings seem to have been fairly submitted to the jury, and its findings in favor of the plaintiff, it will not be disputed, are entirely consistent with and supported by the evidence ; provided, the evidence given by plaintiff’s witnesses as to material matters was true, and that the Court did not err in stating the law.

The first branch of this proposition — as to the credibility of the witnesses and the relative weight to be given to contradictory and opposing evidence — was passed on by the jury and afterwards considered by the District Court, on motion for a new trial, adversely to the defendants, and I can see no sufficient reason-why this Court should interfere with such verdict and ruling. Ordinarily, appellate Courts will not do so, and certainly there are no especial circumstances shown in this instance which should except it from the operation of the general rule in such cases.

The Court properly allowed the amendment of the complaint, respecting the value of the property. The defendants could not be prejudiced by amendments which in effect reduced the claim for damages from one thousand dollars to six hundred dollars.

Nor did the Court err in admitting as evidence the bills marked “ A,” “ B,” “ C,” and “ D.” The objection is entirely too technical to be favored by Courts of justice at this day. - The further point, that the Court erred in overruling the motion to strike out all evidence showing that the bill of sale was intended as a mortgage, and not an absolute sale of the chattel property, needs no special comment, as the principle is well established that under proper circumstances evidence'is admissible to- explain the character of the transaction, and show the purposes for which the instrument is given. I hold the evidence was properly allowed in this case. This brings us to the instructions of the Court. At the instance of plaintiff, the Court gave certain instructions to the jury, to which defendant excepted generally. Also at request of defendants. gave certain other instructions — refusing one — to which ruling defendants also excepted. On the argument, I understood appel-. lants’ counsel to confine his assignments of error in the matter of instructions to the last one of those given for plaintiff, and the refusal to give the other asked by defendants — both of which, as will presently be seen, refer to the same point. To a proper understanding of the effect of these instructions, I will state that the complaint as amended alleged the value of the personal property taken by Constable Lannan to be six hundred dollars. The defendants, in answer to this allegation, claimed that it was not of greater value than five hundred dollars. No proof was made on the trial as to the value of the property. On this point the Court gave this instruction: “ If the jury find for the plaintiff it will return a verdict of five hundred dollars damages, the value of the property at the time it was taken by defendant Lannan, as admitted in defendants’ answer,” and refused to instruct such jury on defendants’ motion, “ to entitle the plaintiff to recover in this action he must prove that the property described therein has some value. The jury cannot infer that it has a value, and if the plaintiff has not proven the value of the property, you must find for the defendants.” The last instruction was not admissible under the pleadings. The answer denied that the property was of the value of six hundred dollars, or that it was of greater value than five hundred dollars. This in effect was an admission that it was at least of the value of five hundred dollars. If plaintiff had chosen to contest the matter in respect to the differences of the two estimates, he could have introduced his proof to show the greater value, six hundred dollars ; but he was equally entitled to the benefit of the admission contained in the answer, and without any proof on his part accept defendants’ estimate of such value, and adopt it as the basis of the moneyed -judgment in the action. In a case like this the admission of a fact, stated in the adversary’s pleading, dispenses with the necessity of proof on the particular point, and the findings of the jury or instructions of a Court based upon an admission of the parties by the pleadings or otherwise, is not less an assessment of damages than if the findings were made upon conflicting evidence on the subject. See Patterson et al. v. Ely et als., (19 Cal. 40.) The only error I discover in the instruction the Court did give as above quoted has been against the plaintiff, for he was entitled to lawful interest on the value of the property’from the time of its seizure up to the rendition of the verdict, in addition to such value at the time of the seizure. The instruction does not cover interest. The verdict conforms to the instructions, whilst the pleadings would have warranted an assessment of damages for a greater, but certainly not for a less amount. Under the circumstances the error is unavailable to appellants.

If the instructions to the jury ar-e amenable to further criticism, in my judgment they will be found in no respect less favorable to defendants than the pleadings and evidence warranted.

The judgment and order of the District Court will be affirmed.

Lewis, J., did not participate in the foregoing decision.