150 N.W. 475 | S.D. | 1915
Action for the recovery of -damages caused by cattle belonging to certain Indians on the Rosebud Indian Reservation that were allowed to- trespass- on plaintiff’s land. Plaintiff recovered judgment; .and defendant appeals.
Plaintiff is a farmer, occupying land along the north side of White river. The defendant is what is known as “Boss Farmer” in the district of the Rosebud Reservation, lying along the opposite side of White river. During the fall of 19x1, cattle, belonging to certain Indians in -defendant’s district, trespassed upon and damaged- plaintiff’s -crops, and were distrained and held by him for the damage resulting from such -trespass. Defendant undertook to adjust the matter of -said- damage -with plaintiff, and, a-s a result of their negotiations, plaintiff and defendant agreed upon the amount -of damages- to which plaintiff is entitled; and it is contended- by plaintiff that defendant himself agreed to pay the amount of the damage -so agreed upon, an-d that, upon the strength of such agreement, he surrendered' the cattle to their owners -and released his lien thereon.
Defendant -does not deny that he made certain representations to plaintiff; and it is not disputed that, as a result of such representations, -plaintiff released the -cattle and waived -his- lien thereon. It is also apparent from- the record that defendant had
“In order to bind the defendant on his alleged promise to- pay, you must find' that the defendant promised that he personally would be liable for the damages done by the trespassing of the TD’ cattle testified to., and you must further find that as a result of such promise tíre plaintiff did release such cattle and thereby lost his lien for damages which he might have had -had he retained possession of the cattle. In other words, it amounts to simply this, gentlemen, that before the plaintiff can recover in this case you must first find that the defendant made the promise to pay these damages personally and thereby made him'self responsible for -these damages, and that as1 a result of this promise, if you believe from the evidence -that he made such a -promise, the plaintiff turned these cattle lose and thereby lost his lien. In that case, gentlemen of the jury, he would be liable. On the other hand, the defendant says he made no such promise. He contends that all he agreed to do was to do his best to collect this money from, the Indians and turn it over to the plaintiff. If this was the agreement between the parties, then of course the defendant would not .be liable personally, and you should find in his favor.”
Certain assignments -are based upon the trial court’s ruling on the admis-sion of testimony and upon defendant’s motion for a directed verdict at the close of plaintiff’s testimony, and again at the close of all the testimony.
The other assignments have been examined, but do not re-require special discussion.
We are satisfied that no error is disclosed, and the order appealed from is affirmed.