Herron v. Bondurant & Todd

45 Miss. 683 | Miss. | 1871

Tabbell, J.:

A lot of mules having been seized by attachment at the suit of defendants in error against Burbridge and others, the property was claimed by T. A. Herron, in the mode pointed out by statute. This issue came on to be tried at the 'Washington county circuit court, in 1870, resulting in a verdict for the plaintiffs, in attachment. Whereupon the claimant sued out a writ of error. In this court the following are assigned as errors in the court below: 1st. In permitting the plaintiffs to read the judgment in their favor against defendant in attachment; 2d. In rendering judgment for the aggregate value of all the mules, instead of having the value of each mule found by the jury by writ of inquiry or by the assessment of the officer levying the attachment; 3d. In amending the verdict of the jury ; 4th. In refusing a. new trial. The motion for a new trial was on the following grounds: 1st. The jury found contrary to the evidence; 2d. The court erred in allowing the plaintiff, against the objections of claimant, to read the note or bill sued on in the suit against Burbridge et al., and the judgment rendered therein; 3d. The court erred in questioning the jurors touching their verdict, and in having the same remodeled in accordance with the statements of jurors, without the consent of claimant. 53 Me. 422; 41 Ala. 124.

It is unnecessary to discuss all the points presented for our consideration. We may observe, however, in reference to the action of the circuit judge in correcting or changing the verdict of the jury, that it is a power which should be exercised with the greatest caution, and only in the clearest cases, where no possible question of the propriety or regularity can be raised; otherwise, it is better to direct the jury to retire for the purpose. In regard to the merits of this case, if any fact is established by the testimony, it is certain that the animals in controversy belonged absolutely and indisputably to the claimant alone, or they were the property of Burbridge & Herron, partners in planting. The record is wholly without legal proof to show title to these mules in the defendants in attachment, exclusive of the partnership interest of Herron.

A captain of a Kentucky steamboat testified that in January, 1866, forty-nine mules were delivered on board the steamer commanded by him, at Louisville, Kentucky, said to belong to Herron, who being indebted to the witness, the latter caused an attachment to be levied on five of the mules, as the property of Herron, when they were claimed by young James Burbridge to belong to him, whereupon the attachment was discharged. This witness, in answer to cross-interrogatories, stated that the man in charge of the mules represented them to be the property of Burbridge & Herron, and that they were so entered on the books of his boat.

Another witness testified that he was employed to take charge of the mules from Kentucky to Mississippi, with instructions to deliver them to Herron; that the mules were released from the Kentucky attachment on the note, bond or writing of young Burbridge ; that young Herron, brother of claimant, paid him for his services and gave a draft for the freight on the mules on Oscar Burbridge, in New Orleans; the mules were delivered as the property of Bur-bridge & Herron, and young Burbridge said they belonged to his brother.

A cler¿ in the house of Bondurant & Todd testified that he understood Burbridge and Herron to say, in 1866, they were copartners in raising cotton.

A Mr. Link of Louisville, Ky., testified that he was employed to take charge of these mules from Kentucky to Mississippi; that General Burbridge employed G. L. Postelthwaites to deliver them to Major Herron ; that when the mules were attached young James Burbridge said the mules belonged to S. G. Burbridge, and James Burbridge gave his own written obligation to secure the release of the mules; that, on arriving in Mississippi, Major Herron was not at home, but his brother, young Herron, said he was authorized by the major to receive the mules and to pay the expenses of the trip, which he did; that it was said at the landing that Burbridge and Herron were in copartner ship in planting.

W. B. Trigg and B. A. Offult testified for plaintiff that they heard S. G. Burbridge say, in the spring of 1867, he had an interest in the planting operations of T. A. Herron.

W. P. Montgomery, called by plaintiffs in attachment, testified that he heard Herron say in 1867 that Burbridge was not his partner, and had no interest or connection of any kind with him.

S. G. Burbridge testified, that in 1866 his wife and sister, in consideration of advances, were to have a portion of the crop or profits thereof raised by Herron; that the year 1866 was disastrous, and every dollar invested was sunk; that in January, 1867, the parties settled, and every thing on the plantation reverted to Herron and became his absolutely; that at no time after January, 1867, did his wife, or his sister, or O. H. Burbridge, or T. B. Burbridge, or witness here, have, own or claim any interest whatever in the property levied on in this case, or in the plantation interest of Herron.

There is not in the record the slightest intimation that the representations made in Kentucky as to the ownership of the mules, was by the authority, knowledge or sanction of Herron, or of S. Gr. Burbridge, ngr is there any legal evidence to justify the conclusion of the jury. No man can be rightfully deprived of his property on the unauthorized and unsanctioned representations of others, made hundreds of miles from the real parties in interest, without their knowledge. See Clark v. Edwards, 43 Miss., and authorities therein referred to.

The verdict is clearly contrary to law and evidence. The mules were the property pf Herron, or of Burbridge and Herron. They most assuredly, upon this record, did not belong to the defendants in the attachment. The verdict is too manifestly wrong to be sustained. There is nothing in the record impeaching the testimony of S. Gr. Burbridge, or to show that it was attacked for any cause. The facts established by the only legitimate evidence in the-•cause are, that certain of the Burbridges and Herron were ■copartner's in planting in 1866, owning together a number •of mules and other property, and that in January, 1867, prior to the attachment in this case, the copartnership was terminated by a settlement, and the property was transferred to Herron, who then became the sole owner thereof, and the Burbridges ceased to have any further interest therein. So far as the record shows, this evidence was not only not impeached, but not attacked. The declarations aud representations of parties in Kentucky, without the knowledge, sanction or authority of Herron or his partners, are entitled to no consideration, as at present presented. Yide, authorities above cited.

The judgment is reversed and the cause remanded.