116 P. 1029 | Idaho | 1911
This action was one of claim and delivery to recover possession of a roan steer. It was tried in the distriet court for Blaine county, and resulted in verdict and judgment for the defendant, from which and from an order denying a new trial plaintiffs appeal.
The sole assignment of error made in this court is that the evidence is insufficient to justify the verdict. Under this assignment we do not review the weight of the testimony, nor consider how we, as trial judges, would have decided the case as original triers of fact, nor how, as such judges, we would have disposed of a motion for a new trial upon the same assignment; but the only question before us on appeal is whether there is any evidence in the record upon which the jury could base their verdict. For it is a rule too well established to require citation of authority, and, indeed, explicitly admitted by appellants’ counsel, that a verdict based on conflicting testimony will not be disturbed on appeal if there is any evidence upon which the same may rest.
The admitted facts of the case are that on April 29th, 1907. the defendant sold to plaintiffs, by bill of sale, all his cattie except five milk cows for the sum of $22 per head, described as follows: “Five three year old steers, six two year old steers, three bulls; balance about fifty-four head of stock cattie, cows, heifers and steers mixed. All young calves not branded thrown in, and twelve head of the smallest branded
On the first of these questions the plaintiffs, to make out their ease in chief, rested upon the testimony of the plaintiff Henry Mehl alone, who, after testifying to the execution of the contract and the delivery of the cattle, said that this steer was delivered with the rest of the cattle on June 1st, 1907, but was missing on the final round-up, was afterward picked up and again lost, and was next seen in the defendant’s field. On cross-examination he said that he received all the cattle stated in the contract at the time of delivery; that this roan steer was in the bunch of two-year-olds, that he could only identify it by the brand, that it was vented as the other cattle were, and that he had not seen it for a period of some two years prior to the commencement of this action. It thus appears that the plaintiffs’ theory of the case was that this steer was one of the two-year-olds described in the contract, that it was delivered and paid for as such, and afterward came into the possession of the defendant in some manner which the evidence does not disclose. To meet this ease the defendant testified, though after considerable vacillation and uncertainty, that this steer was born in the fall of 1906 and branded in late October or early November of that year. He explained the double brand as having been placed on the animal in March, 1907, because the first brand had become faded and dim. The defendant was corroborated by, or it
While the more scientific testimony of the plaintiffs’ expert witnesses on this question of the age of the animal might be more satisfactory to us were it presented upon an original trial, yet we cannot say that the jury were bound as a matter of law to accept their opinions and to reject the positive statements of the defendant’s witnesses who had watched the development of the calf, and the expansion of his intellect, with such solicitous interest from its birth to its emphatic protest against the indignity of a second brand in March, 1907. Counsel for appellant criticise Mr. Jones’ psychological method of identification of an animal not endowed with any more mentality than the average range steer, but in view of the fact that the eyes of cattle have attracted favorable comment from the time at least of the Trojan war, we cannot hold that it must as a matter of law be wholly inconclusive with a jury. We therefore cannot hold that a verdict on this point is not sufficiently sustained by the evidence to satisfy the requirements of the rule by which we are governed in determining this question.
Turning to the second question which we have stated as urged by appellants’ counsel, viz., conceding the respondent’s testimony to the age of the calf as correct, it would then be a calf which was gratuitously included in the contract, we find that the respondent testified specifically that appellants were to pay for this calf. The bill of sale itself lends no aid to a determination of the question of the age of the mixed stock cattle which were to be paid for, and with respect to the branded calves to be thrown in it merely states that these were to be the young calves not branded and “twelve head of the smallest branded calves.” There is nothing to show that this calf was one of the smallest branded calves, and if it was a branded calf larger than the twelve smallest of such calves, it would not be thrown in. Furthermore, the appellants’ ease is rested exclusively on the proposition that this was a two-year-old steer, and all their evidence was directed to the establishment of the age of the steer. Mr. Mehl says
For these reasons the judgment and order appealed from must be affirmed, and it is so ordered. Costs awarded respondent.