45 Colo. 270 | Colo. | 1909
delivered the opinion of the court:
This is an action for claim and delivery of a horse. ' The appellants were defendants below. About six or seven years before the commencement of the action, the minor son of plaintiff worked for one Krensky. At that time, Krensky owned a mare that was running in the pasture of one Sease. This
This claim of appellants to this animal bears upon its face its own refutation. The appellants did not purchase it.
Appellants assign many errors. They first say that there is a fatal variance between the proof of the animal in controversy and the description thereof given in the. complaint. The description of the animal testified to- by some of the witnesses may be different from the description given in the complaint, while the testimony of other witnesses is substantially the description contained in the complaint. However, the jury were, without objection, permitted to view the animal in controversy at the close of plaintiff’s case, and as the jury, after viewing the animal, were satisfied, it is not for this court to interfere with their verdict on the ground of variance.
The appellants also claim' that there was no actual and continued change of possession from
.Appellants object to instruction 5 given by the court. This instruction told the jury that, if the sale from. Krensky to the boy “was conditional, that no title was to pass until the horse was actually taken into possession and until the same was paid for in full, the plaintiff could not recover in this action.” This is what the appellants contended for at the trial, and' in substance, they asked the .court to so instruct. They cannot now complain.—Little Dorrit G. M. Co. v. Arapahoe G. M. Co., 30 Colo. 431.
It is true instruction 5 contained another and distinct proposition, but the exception was general, and directed to the whole instruction. As one proposition was right, so far as appellants are concerned, they can not be heard to complain.—Hasse v. Herring, 36 Colo. 383.
Appellants complain of the refusal of the court to give requested instructions numbered 6, 7 and 8. Number 6 related to section 2027, Mills’ Ann. Stats., number 7 to the branding of animals, and number 8 to the question of good faith. In our view they were inapplicable, and the refusal could not prejudice the defendants. They also complain of the refusal to give requested instructions numbered 2 and 3. Number 2 related to the law of
Appellants contend that plaintiff ought not to recover, because there was no administration of the boy’s estate. "What need was there for administration in this case? No creditor is making any claim. •With administration, the plaintiff would have the horse or its value, less the costs of administration; without administration, plaintiff would have the horse or its value without diminution. In the light of the authority of Waterhouse v. Churchill, 30 Colo. 415, it is clear that, under the special facts and testimony in this ease, the plaintiff could maintain this action.
It therefore follows that appellants are wrong when they say the court erred in giving instruction 3, which stated the law of descent applicable to this case, and instruction 4, which told the jury that plaintiff must prove that her boy was the owner of the horse or entitled to its possession at his death.
The jury valued the horse at $75.00. Appellants object to this. The objection is without merit. Witnesses, without objection, were allowed fo testify to the value. Their estimates varied. Some mentioned seventy-five dollars, and the jury so found.
As no meritorious assignment of error is made, the judgment will be affirmed. Affirmed.