22 S.D. 630 | S.D. | 1909
This is an action in claim and delivery, brought by the respondent against the defendant company to recover Ithe possession of 11 head of steers, which the said respondent, as plaintiff, claimed had been taken from his possession and wrongfully detained by the said appellant, defendant in the lower court. Plaintiff sought to recover the value thereof, in case the property could not be delivered, together with $200 for damages for the unlawful detention. Plaintiff’s complaint describes the steers as 11 head, three years old, a part of which are branded -~- 011 the left side, and a part branded V; both of said brands being vented with the vent of the owner of said brand, ” — ” below the above brand. All of said steers were also branded with K on the left side, which is the brand owned and run by 'the plaintiff. The plaintiff alleged this wrongful taking as occurring on December 29, 1903, and that before the commencement of action he had demanded the return of the property. Defendant, answering, alleges: That November 4, 1902, one McQueen and one Barger were the owners and in the possession of the property described in plaintiff’s complaint, together with other cattle and horses; that on said date defendant loaned McQueen & Barger a large sum of money, taking from them their note due November 4, 1903; that to secure ,said note they took a chattel mortgage (on the property described in plaintiff’s complaint, together with other property; that said
The above are the material allegations of the pleadings. Plaintiff offered testimony, which was received, which, if believed, would tend to show: That on or about October 22, 1902, he entered into a contract for the purchase of 15 head of steers from McQueen & Barger at an agreed price; that on that date 7 head were separated from a large number, branded and taken in possession by the plaintiff; that he made a partial payment, and a day or two later another .small payment; that he 'was about to ship some stock to market, and agreed that upon his return he would pay McQueen & Barger, and it appears without dispute that on November 6, 1902, he gave a check to McQueen for the amount which he claims was the balance due, and which together with the other payments would amount to the sum which he claims he was to give for said stock. The testimony on behalf of plaintiff would also tend to show that after making this contract for purchase, and before the payment of the check above referred to, which was by far the greater part of said purchase price, the plaintiff had a talk with the president of the bank, defendant, advising him that he had made such purchase, and that said bank, through its president, assured him that he was iglad he had made the purchase, that they had a mortgage on some of McQueen & Barger’s stock, and that the sum plaintiff was to give was more than the stock would bring if shipped. The testimony on behalf of plaintiff also tends to show that the mortgage of November 4, 1902, was not signed by Barger until about November 9th, and plaintiff claims that that was the date he witnessed same.
Upon the trial defendant offered evidence to show that the stock sold did not answer the description contained in the com
Defendant complains because he was not allowed to ask McQueen on cross-examination the following question: “You sold some of this mortgaged property to Kime, didn’t you?” This was objected to as improper cross-examination. This ruling was correct in view of the direct examination, and, moreover, the answer would have been immaterial. This question related to property covered by first mortgage, and, as will be hereinafter explained, the first mortgage did not cover the property sued for, and therefore whether Kime bought any of the property that was covered by first mortgage or not was absolutely immaterial.
Defendant also complains because plaintiff was allowed to answer the following question: “Mr. Kime, you may state to the jury when you became the owner of these n head of cattle described in your complaint.” This was asked of plaintiff after defendant had rested his case and was objected to as not rebuttal, and also as icalling for the conclusion and opinion of the witness. This witness had prior thereto on his direct examination testified as to about when lie purchased them, and this without objection, and after the above question was asked and answered 'in rebuttal he went on and detailed the circumstances connected with said purchase, which was certainly within the discretion of the court to -allow, especially in view of the issue that the- defense had attempted to raise. '
We have gone quite fully into this case, but, regardless of whether there were errors upon the trial, it is clear to us that the judgment above should be sustained for the reason that, taking the uncontradicted testimony in connection with the evidence offered by the defense, the plaintiff was entitled to a verdict for possession of this stock; and for 'the following reasons: The mortgage given in 1901 covered 18 head of two year old steers, together with other stock, but did not purport to cover yearlings nor did it purport to cover all the stock owned by the mortgagors. There was ample evidence, which, if believed, would establish a sale by McQueen & Barger to plaintiff of 15 head of two year old steers in the fall of 1902, a sale that would be perfectly good as between the parties thereto. And it appears from the record that it was practically conceded on the trial that such a sale was made, and the court so assumed in giving its instructions to the jury, this part of said instructions was not objected to. The 1901 mort
The >only question then is: Did the 1902 mortgage cover this stock ? If it did, then it might perhaps be good as to a part thereof upon the ground that, even if plaintiff had purchased them before the date of said mortgage, yet they had not passed from the possession of the former owners. The 1902 mortgage purported to cover, among other stock, 31 two year old steers branded K ion left side, and the mortgage declared the property therein described to be all the stock the mortgagors then owned; hut this description and declaration in the mortgage is certainly insufficient as against the prima facie case made by plaintiff upon his proof of the purchase of the stock in question. There is absolutely no evidence but that McQueen & Barger owned and had in their possession 31 head of ,two year old steers at the time they gave this 1902 mortgage, and had this number besides such steers as plaintiff had purchased and of which plaintiff had not yet taken possession; and certainly, without evidence to support it, the jury would have no right to assume that the 1902 mortgage covered any property which the mortgagors had already sold.
For the reasons above stated, we think the trial court would have been justified in submitting to the jury one question, namely, whether the plaintiff had bought the cattle of McQueen & Barger, directing them that, if they so found, then the plaintiff was entitled to a verdict for a return of the property or the value thereof, otherwise defendant to have a verdiqt for the possession; but as the court assumed that the plaintiff had purchased these cattle, and the defense have nowhere complained of this assumption on the part of the court, and have thus practically admitted the^
The judgment of the lower court and the order denying a new trial are therefore affirmed.