Comeau v. Hurley

22 S.D. 310 | S.D. | 1908

EUEEBR, J.

At the trial of the issues presented by the pleadings in this action the jury found and the court adjudged respondent to be the owner of 5 cows, 3 steers, and 2 heifers of the valueof $252, all of which were seized and sold with certain cattle and horses, belonging to his brother, Walter Comeau, in satisfaction of an execution issued against the property .of their father, M. A. Comeau. The evidence tending to prove the ownership of respondent and the wrongful conversion of his property, as well as the questions of law> presented on this appeal, are so similar to the recent case of Walter Comeau versus these appellants, reported in 22 S. D. — 115 N. W. 521, that counsel for appellant direct our attention to, and request us to consider the printed abstract and briefs filed on that appeal. Here, as. in the action of his brother Walter against these appellants, the evidence is to the effect that respondent and several brothers resided with their mother Upon, and had exclusive management of, a government homestead owned by their father, whose business as a contractor and builder had kept him from home during the last II years almost constantly; his visits there being at intervals of about three months, and of but three or four days’ duration. With the knowledge and approval of both parents, the boys of the family, including this respondent, have acted for themselves from childhood in all business transactions, and have collected their earnings and invested the same without parental interference. The testimony in both cases, so far as material, is practically the same, and tends to show that the cattle were bought by the brothers through the agency of their father, who- on account of their minority signed a chattel mortgage executed thereon to' secure the entire purchase price which the boys have been paying conformable to the family agreement entered into-before axiy of such property was obtained, and the facts and circumstances are reasonably sufficient (to justify the jury in finding the essential issue of ownership favorable to respondent and against both appellants.

Respondent was permitted to' testify as to certain conversations occurring many years ago between the father and his sons, including this respondent, with reference to their working the farm, managing the 'business, and purchasing the cattle through him, but on their account; and the objection that such conversation was inadmissible because the same did not take piece in the presence of appellants was very properly overruled. It was alleged in the complaint that respondent is the owner of the cattle so converted by appellants, and the arrangement and understanding between the father and the sons by which they were emancipated and given the right to acquire the property for themselves was vitally essential to his cause, and the facts and circumstances related on the witness stand as to what was said -and done relative thereto constitute the best evidence of which the case in its nature is susceptible. The intent to defraud the creditors of M. A. Comeau by the transactions between himself and sons at the time the cattle were purchased and the subsequent execution and delivery of a certain bill of sale offered by the defense and received in evidence was the groundwork and essence of appellant’s justification for the seizure and sale of the property under execution. Though fraud and deceit are regarded by the law with abhorence, no invariable rule of proof is contained in the books, and yet it is well settled that a contract or transaction assailed on that ground, though evidenced by a written instrument, may be destroyed or sustained by the parol testimony of the parties as to the motive that prompted their action and the preceding or accompanying facts and circumstances may be fully stated and explained.

The remaining assignments of error pertaining to the rulings of the trial court on the admission, or rejection of testimony being similar and likewise without substantial foundation, they present no question that justifies any further discussion.

Nor can the numerous errors predicated upon the following exception to the court’s charge to the jury be considered. “The defendant objects and excepts to all instructions given by the court to the jury, and also to the form of the verdict presented by plaintiff and permitted by 'the court to be handed to the jury, the said verdict being in the following form: ‘We, -the jury, find for the plaintiff on all the issues and assess his damages in the sum of $252 with interest from the 3d day of June, 1905,- at 7 per cent.’ ” The attention bf the appellate court must be directed to the infirmity of the trial court’s charge by specific exceptions to particular instructions, and a general “exception to all instructions given by the court to the jury” is not sufficient to preserve the right of review. Banbury v. Sherin, 4 S. D. 88, 55 N. W. 723; Calkins v. Seabury-Calkins Consol. Min. Co., 5 S. D. 299, 58 N. W. 797. It being affirmatively shown by- the undisputed evidence that the property taken, concerning the identity of which there is no question, was worth $252, and there being nothing in the record to indicate that a verdict was phrased, “and permitted by the court to be handed to the jury,” the general objection above quoted affords no reason for a reversal, although the jury was instructed to assess respondent’s damages m that amount provided he was found to be the owner of the cattle. The court having charged “that the fact, if it exist in this case, that certain testimony has not been contradicted, 'is not conclusive upon this jury that the same is true,” and it affirmatively appearing that the entire charge is not presented on this appeal, error cannot be presumed on account of the refusal to give the following instruction: “You are instructed that the mere 'fact that certain evidence is not disputed does not necessarily mean or indicate that such evidence must be taken as absolutely true, but you will use your own experience and observation, and these, with the facts and circumstances shown on the trial, should be employed by you in determining the real truth of the matters in controversy. And this will apply to- the value of the cattle in controversy as shown by the evidence.”

As substantially the same instruction had been given, and there is no available exception to the charge, there is nothing to justify a reversal, and the judgment appealed from is affirmed.