39 Minn. 488 | Minn. | 1888
There are no questions in this case that require any extended discussion. The defendants were sued for damages for wilful trespass in unlawfully entering upon plaintiff’s premises and carrying away a quantity of her grain. The defendants, who answered jointly, admit the acts constituting the alleged trespass, but justify on the ground that the grain was the property, not of plaintiff, but of her husband, Theodore Heartz, and that they took it by his authority. Hence, under the pleadings, the only issue, aside from the amount of damages, was the ownership of the property. On this issue there was no material conflict of. evidence, and we think the court would have been justified in instructing the jury, as a matter of law, that it belonged to plaintiff. It is undisputed that part of the grain was raised on land which had belonged to her deceased husband, and which she continued to occupy as his widow after his decease, whether under the will, or under the statute as a homestead,
The evidence is equally conclusive, not only that the defendants lniew before they took the grain that plaintiff claimed it, but that she expressly forbade them, and even attempted to prevent them, from -taking it. Not only this, but, when she had her husband arrested on the 24th for taking the grain removed on that day, some of the defendants were present at the trial where her rights to the property were fully discussed, and yet they persisted in again returning on the 26th, with Heartz, and removing the balance. The fact that defendants were present at the trial was competent evidence upon the question of their notice of plaintiff’s rights, and consequently whether their acts were wilful. The court was certainly justifiable in instructing the jury that they might award exemplary damages if they found that the defendants took the property knowing that it belonged to the plaintiff.
The defendants were sued as joint tort-feasors. They answered jointly, justifying the act as a joint one, and the evidence shows it was such. They all acted in concert, for a common purpose, going
The receipts “C” to “K” inclusive, purporting to have been given by third parties to Heartz, were clearly inadmissible, both because of immateriality and incompetency. The fact that Heartz, after he had wrongfully taken and converted this grain, volunteered to use part of the proceeds in paying debts connected with running the farm, would, be no defence to this action; and, even if it would, these receipts were, as against the plaintiff, mere hearsay. Ferris v. Boxell, 34 Minn. 262, (25 N. W. Rep. 592.)
Order affirmed.