Gregory v. Morris

1 Wyo. 213 | Wyo. | 1875

By the Court,

Fisher, C. J.:

This was an'action in replevin, brought to this court from the February term, A. D. 1874, of the district court in and for the county of Albany,in the second judicial district of the territory of Wyoming.

The record of the case shows that on the twenty-sixth day of February, A. D. 1873, W. A. Morris, one of the defendants in error, and A. J. Gregory, plaintiff in error, entered into a written contract, in the city of Austin, in the state of Texas, stipulating for the sale of a large number of cattle to A. J. Gregory, in accordance with a schedule of prices attached to and made a part of the record in this action. One of the terms of said contract was that the said Morris, having sold and delivered to said Gregory the cattle referred to in the written contract, was to retain a lien on the cattle until the whole of the purchase-money, amounting to between seven and eight thousand dollars, should be paid by Gregory, and that in tbe event of tbe balance of said purchase-money not being paid on or before the first day of October, A. D. 1873, that then the agent of Morris, viz: O. E. Poteet, was to sell all or such portion of said cattle as would pay the purchase-money then remaining due and unpaid, as well as the wages and other expenses of said Poteet, as has been stipulated for in the said written contract.

The written contract having been duly signed by the parties, Morris gave Poteet a power of attorney authorizing him to accompany and retain the lien provided for in said contract.

The parties arrived on the Laramie plains with said cattle some time in the month of September, A. d. 1873, and the cattle remained in the possession of Gregory from that time until October 4, 1873, at which time the purchase-money not having been paid, Poteet took forcible possession of the cattle, and drove them from the ranch at which they were grazing to the ranch of Mr. Alsop, some distance from there.

Gregory then brought his action in replevin to recover possession of the cattle and damages for the wrongful detention thereof against .both Morris and Poteet, setting up the ordinary counts in his petition.

The defendants filed an answer, denying all the allegations of plaintiff’s petition, and denying specially that they wrongfully detained the said property.

The case coming on for trial in the district court, the plaintiff proved the possession, ownership, taking, demand and detention of the property, with the value, etc.

The defendants then undertook to introduce the written contract and other documentary evidence, which was objected to by plaintiff’s attorneys, and the objection was sustained by the court. Defendants then asked permission to amend their answer, setting up the special matter which had been refused under the original answer. This was also objected to by attorneys for plaintiff, but the objection was overruled, the written evidence was admitted, to which the plaintiffs’ attorneys reserved their “ exception.”

All the evidence on the part of the defendants was then given, together with certain rebutting evidence on the part of the plaintiff, and the case went to the jury under certain instructions of the court, to some of which exceptions were saved, which will be adverted to hereafter, and the jury returned a verdict for defendants, assessing the damages at seven thousand four hundred and fifty-four dollars and ninety cents, and judgment was duly entered on the verdict.

The plaintiff’s .attorneys filed a motion for a new trial, and assigned the same errors which are brought to this court by petition in error. The errors relied upon by the plaintiff in error, who was plaintiff below, are:

1. That the court below permitted the defendants to file an amended answer to plaintiff’s petition, in which they set out the documentary evidence upon which they relied to defeat the plaintiff’s claim.

2. That certain questions were permitted to be propounded to the plaintiff on his cross-examination touehiug the terms of the contract for the sale and purchase of the cattle taken in replevin.

3. The instructions of the court below, as well as fhe instructions refused to be given on behalf of the plaintiff. There are a large number of exceptions taken, but we find that the foregoing embrace the substance of the whole.

If there was any error on the part of the judge who presided at the trial of the case, on the subject of permitting or refusing the written contract, or other documentary evidence, we do not find that the plaintiff had the right to complain of it, from the fact that we are of opinion that the defendants should have been permitted to have given the said evidence under the issues raised by the petition and answer. The petition of the plaintiff set out the wrongful detention of the cattle, which constitutes the gist of the action in replevin, while the defendants set up the plea of non detinet. The plaintiff’s attorneys claim that the plea of non detinet at common law admits the title to be in the plaintiff. This, however, is clearly wrong; the plea of min cepit, which was the general issue at common law in actions in replevin, originally did admit the title to the property, to be in the plaintiff, but this was only so long as actions in replevin were resorted to to recover goods and chattels distrained for rent: See 3 Blackstone, 13. But under our statute the plea of non cepit is hardly ever set up, but the wrongful detention usually being the turning point in the case, the plea of non detinet has virtually become the general issue.

If then, the defendants plead the general issue, we think they should have been permitted to have proven property in the cattle taken in replevin. It is true the plea of “property” is set up in many of the courts in this country, but we think that under the practice in this territory that the defendants had the right to prove property in themselves under their general denial, or at least under the special denial of the wrongful detention of the property. Now, conceding this to have been error, was it such an error as the plaintiff could complain of? Surely not; the court having refused to permit defendants to give in evidence the testimony by which they could establish their right to the possession of the property taken in replevin.

"We think the court below did right in permitting the defendants to amend their answer, so that the facts might go to the jury. Amendments of this character are clearly permissible under the code of civil procedure of Wyoming; this is especially so when we take into consideration the ruling of the court on the objection of the evidence under the original answer file'd. Another reason why we do not find any error in permitting the amendment to the answer to be filed, is found in section 149 of the code of 1869: That ‘ the court in every stage of action must disregard any error or defect in the pleading or proceedings which does not affect tbe substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.” Now, while we do not find any error, unless it be the refusal of the court to allow the documentary evidence to be given under the original answer, yet even if there was any other error, surely the ruling of the court did not wrongfully affect the rights of the plaintiff.

The next point to be considered is, whether the defendants had such a right of possession of the cattle in question as justified them in taking them into possession and refusing to surrender them to the plaintiff on demand being made ? A reference to the written contract, we think, is enough to satisfy any one on this question. Written contracts are supposed to contain the intentions of the contracting parties at the time they are made, and while ordinarily the delivery of chattels into the custody of the vendee is a transfer of the right of property from the vendor to the vendee, and as between them and third parties the law presumes that a change of possession carries with it a change of title; but as between the vendor and vendee, there may very readily be such stipulations as causes the right of property to remain in the vendor, as gives him the right to resume possession upon-the breach of any of the covenants contained in the stipulations of sale: See 3 Par. on Con. 252, 258. The record in this case discloses just such a contract, containing such a stipulation — that if the vendee failed to comply with the terms of the written contract, that then the property was to revert to the vendor under other covenants in said contract.

The next point to be considered is, the instructions of the court, viz., that the rights of the parties are to be determined by tbe terms of the written contract; but having treated of this under the second point considered, we need not enlarge here, as we deem it sufficient to say that we find no error in the instructions given.

There is another error complained of, and that is, that the verdict of the jury should have been based upon a gold standard, inasmuch as the sum due on the contract was payable in gold, but this suit not having been brought on the contract', but for damages for the wrongful taking and detention of the property, the jury did right in returning their verdict without reference to the standard of either gold or currency.

There is one other question raised by the plaintiff in error which perhaps demands the attention of this court, and which has not been referred to, and that is, the extent to which the jury, as it is claimed, should have gone in making up their verdict. The code of this territory provides that where the property taken in replevin has been taken by the plaintiff, and the jury find for the defendant, they shall find whether the defendant at the commencement of the action had the right of property or the right of possession only, and in either case shall assess such damages as they shall think right and proper for the defendant; for which, with costs of suit, the court shall render judgment for defendants: Civ. Code of Wyoming, 1869, sec. 195. We do not think the finding of either of the matters specified in the section constitutes a returning of a verdict, but rather the consideration of the grounds upon which the verdict is based. In other words, the jury is instructed to find whether a certain state of facts exist, and if so, they shall return their verdict accordingly; and not that the jury are to return the grounds upon which the verdict is based. It is true Mr. Seney, in his code, holds that a general verdict is not sufficient, and cites a case decided by one of the courts of Ohio on the point; but with all due deference to that authority, we are of the opinion- that in this case no good would be accomplished by such a special finding, nor has any injury been sustained by either party in consequence of the general verdict, and as our code provides that the proceedings shall not be disturbed on account of any informality Which does not affect injuriously either party, we do not find this a ground to disturb the verdict.

We think substantial justice has been done, and that the verdict of the jury is amply sufficient to sustain all the rights of the parties. The judgment of the court below is affirmed.