35 P. 698 | Idaho | 1894
In this case the plaintiff alleges that Estella E. Bradford was the owner and in possession of fifteen head of cows and heifers, and other livestock. That she did, on or about the twenty-ninth day of November, 1887, lease to the defendant, O. Willcut, the said stock, upon the condition that he was to care for said stock, and have possession thereof, for the term of five years on and after the said twenty-ninth day of November, and to receive therefor one-half of the increáse, the ■other half to go to and be returned by the said Estella E. Bradford. It was further agreed' that, in case of the loss of any of the above stock, or the increase thereof, through or by neglect of the said party of the second part, then the said defendant Willcut should make good such loss to the said Estella. Included with said stock were five yearling steers. Said steers were to be sold by the party of the second part when they became three years of age. The proceeds of said sale were to be equally divided between the parties of tbe first and second part, and at the end of five years the said Willcut was to return what might be left of the original number, and one-half of the increase of the same. In pursuance of said lease, the stock was duly transferred by the said Estella Bradford to said Will-cut, and he at all times thereafter had the management, possession and control of same. That on or about the thirty-first ■day of July, 1889, the said Estella E. Bradford, for a valuable •compensation, sold and transferred to the plaintiff, Dennison, ■all of the said cows and other stock, mentioned in said lease, •and all of her right to the increase thereof, and all of her rights under said agreement. Plaintiff further alleges that, in the year 1890, defendant sold eight of the steers for the sum ■of forty dollars per head; that the defendant refused to pay plaintiff the one-half of the money so received; also that, in the winters of 1888-89 and 1889-90, the defendant carelessly and negligently permitted said stock to go without food, shelter, and proper care, whereby five of the cows, mentioned in said agreement, died; that the value of said cows was thirty •dollars each; and demands judgment for the sum of $410 and
Demurrer was interposed by the attorneys of the plaintiff "to the answer of the defendant Willcut. The record, however, does not show that any action was taken on said demurrer. A motion was made by the plaintiff, also, to set aside the order making Robert and Charles MeCrea defendants in said action. Upon consideration of this motion, the court overruled the ■same, and refused to set aside the order, to which the plaintiff excepted. We think this action of the court was proper, under the statement made in the affidavit' of Willcut, defendant, "that MeCrea Brothers were proper parties to the action. (Idaho Rev. Stats., sec. 4109.)
Thereafter the plaintiff, Dennison, on the third day of August, 1892, moved the court for leave to tile a supplemental complaint, setting up a bill of sale made by Estella E. Bradford and Edward Bradford, her husband, approving of the sale and transfer made by Estella Bradford on the thirty-first day of July, 1889, and again transferring the said stock to the said plaintiff. The second bill of sale between the same parties was dated the eighteenth day of September, 1891. The said motion to file said complaint was denied by the court, to which ruling the plaintiff then and there excepted. We think this was error. The plaintiff should have been permitted to file his supplemental complaint, setting forth, as it did, a copy of the corrected bill of sale. It will be observed that, had no rights of third parties intervened, the corrected bill of sale would have made the title perfect in the complainant. It is true that the answer of MeCrea Brothers alleges that the same property had been levied upon and sold, under a judgment and execution wherein MeCrea Brothers were plaintiffs and Edward and Estella Bradford were defendants; but this was then simply an allegation, and awaited proof. Should MeCrea Brothers fail ip. their proof, then title would be complete in plaintiff. Should they succeed in proving valid attachment and levy, judgment and execution, levy and sale thereunder, then the title of Dennison would seem to be defeated. The supplemental complaint set forth facts which would enable
Thereafter the cause proceeded to trial with a jury. Defendant was introduced as a witness on the part of the plaintiff. He identified the lease from Estella Bradford to himself, which was thereupon offered in evidence. It was objected to by defendant because it was signed only by Estella E. Bradford, a married woman. This objection was overruled by the court, and the lease permitted to go in evidence. This action of the court was entirely proper, as the defendant is estopped from denying the validity of an instrument by virtue of which alone he has obtained possession of property, which he still holds. Third parties might deny its validity, but he cannot.
It is again objected by the defendant, Willcut, and also by Mc-Crea Brothers, that plaintiff, Dennison, could not bring the suit for the recovery of the money alleged to be due by reason of the sale of a portion of said cattle, and the loss, by neglect and carelessness, of another portion thereof. It appears from the two bills of sale that the stock1 was transferred to Lewis-H. Dennison as guardian for Porter L. and Ida H. Dennison., The guardian for a minor is not permitted to bring suit in his own name for money or property belonging to the ward, and which he has a right to the possession of as such guardian, but must bring suit as guardian. (Fox v. Minor, 32 Cal. 116, 91 Am. Dec. 566; Emeric v. Alvarado, 64 Cal. 529, 2 Pac. 418.) He might, however, show if the fact that the money used for the purchase of the stock was his own, notwithstanding the recital in the bill of sale. (Kelly v. Leachman, ante, p. 672, 34 Pac. 813; Miller v. McKenzie, 95 N. Y. 578, 47 Am. Rep. 85; Browne on Parol Evidence, see. 18.) The refusal of the court to permit the filing of the supplemental complaint shut out both the original and the supplemental bill of sale. If the supplemental complaint had been permitted to be placed on file, both of these bills of sale would have been proper evidence. While the one dated July 31, 1889, was not executed in accordance with the law, and was therefore not, by itself, ad
The decision of the lower court must be reversed, and a new trial granted, for the reasons stated above, with permission to the plaintiff to file his supplemental complaint, and to the defendants to file amended answers, and it is so ordered. Costs awarded to appellant.
