Ladd v. Brewer

17 Kan. 204 | Kan. | 1876

The opinion of the court was delivered by

Brewer, J.:

This was an action by defendant in error in the district court of Bourbon county to recover the possession of certain horses claimed to have been unlawfully taken and detained by the plaintiffs in error, defendants below. The principal point made by the learned counsel for plaintiffs in error is, that the verdict was not sustained by sufficient evidence. It appears that Brewer had a livery stable, and that one Jackson was in charge of it, Brewer’s time being principally employed in a restaurant which he also owned. Jackson sold and delivered the property in question to Ladd, one of the defendants, who the next day sold and delivered it to Routt, another defendant. The defendants claimed that Jackson was a partner of Brewer’s, or, if not, an agent with power to sell. To this point then, the relation of Jackson to Brewer, the principal part of the testimony is directed. Brewer’s testimony was clear against any partnership or any authority to sell. True, he did not use the very words, “there was no partnership,” but he says it was his livery stable, that hired men took charge of it for him, that Jackson was tending stable for him as a “hired man,” stated the terms of arrangement between them, which showed Jackson an employé simply, and denied ever giving him authority to sell. Jackson testified that there was a partnership. Other testimony went to the statements, admissions, and conduct of these two parties. ‘The jury found that there was no partnership or authority to sell. We cannot say that they erred. True, several witnesses testify to 'statements from Brewer indicating a partnership — some even to his speaking of Jackson as his partner. Still, we cannot say that this testimony compelled a different verdict. Some of the witnesses were mixed up with this purchase; others, from the record apparently disinterested, may have so conducted themselves on the witness-stand as to carry little conviction of their truthfulness. At any rate, the case comes clearly within the rule, that where there is clear, positive and direct testimony to sustain every essential fact, this court should not disturb the verdict because of a seeming preponderance of testimony against it.

A second important question is, in the kind of testimony offered to prove the damages for the detention, and the basis upon which the jury assessed the damages. Evidence was admitted of the value of the use of the property from the time it was taken, down to the time of the verdict — the property having been retained by the defendants under a redelivery bond — and the jury evidently returned such value as the damages for the detention. This, in the judgment of the writer of this opinion, is not the true rule; but a majority of the court hold otherwise. See the opinion in Yandle v. Kingsbury, recently filed, (ante, p. 196.) Counsel contended that such damages are'special damages, and must be alleged in the petition, or proof thereof is inadmissible. "We do not think so. By the detention the party is deprived of the use of his property; and whatever is the value of such use, the ordinary value of the use of such property, is the natural and necessary result of the detention. No special use was suggested, and the only proof was as to the ordinary value of the use of such property.

Several errors are alleged in the admission and rejection of testimony. Without noticing them in detail, it is enough to say that most of the rulings of the trial judge in this matter were unquestionably correct; that while some of them perhaps were technically wrong, yet that these were in minor matters, and whether right, or wrong are not in our judgment of sufficient materiality to justify us in sending the case back for a new trial. •

Some fifteen special instructions were asked by plaintiffs in error, all of which were refused; and the only instructions given were embodied' in a general charge prepared by the court. Most of the propositions embraced in these special instructions were given in the general charge, and of course the court was under no obligations to repeat them. One proposition however advanced by counsel, which the court refused to give, is made a special ground of criticism, and authorities cited in support of it. The proposition advanced is, that a bona fide purchaser from a fraudulent vendee acquires a good title; and it is insisted that, though the sale might have been avoided as to Ladd, the purchaser from Jackson, yet, not having been avoided while the property was in Ladd’s possession, and Routt having purchased in good faith, he at least acquired a good title. The error lies in this: that doctrine applies only to cases of voidable sales, and never to those absolutely void. In a voidable sale, the title passes subject to the right of the vendor to proceed to set the whole transaction' aside on account of the fraud practiced upon him; in a void sale, no title passes. Where the title passes, the fraudulent vendee may in some cases transfer a good title to a bona fide purchaser from him; but where no title passes the pretended vendee can transfer no title to a third party under any circumstances. Here, if Jackson was a partner, or an agent with authority to sell, a good title passed; or, if not being a partner, and. not having authority to sell, Brewer so held him out to the world as to induce third parties to believe he was either a partner or had authority to sell; or, if without any authority he made the sale, and Brewer afterward ratified it, then also a good title passed. But on the other hand, if none of these things existed, then the pretended sale from Jackson to Ladd passed no title, was absolutely void; and Ladd, having nothing, could transfer nothing. To this effect were the instructions given, and they were correct. To have gone beyond, and added what the ■counsel claimed, would, we think, have been apt to mislead the jury, and suggested that as having support in the testimony which really we think had none.

Thus far we have noticed no error of sufficient moment to justify a reversal of the judgment. As to one of the plaintiffs in error, George Ladd, however, we think the judgment cannot be sustained. He purchased the horses from Jackson, sold them to Eoutt, who put them in Trent’s possession. Eoutt and Trent'filed a joint answer denying the allegations in the petition. Ladd filed a separate denial. The motion also for a new trial was a joint and several motion. Ladd it appears neither had possession, nor claimed any right to the possession. We think therefore it was error to render judgment against him for the return of the property, and damages. True, he signed the redelivery bond with the other defendants, and one John Lawrence, and he may ultimately be made liable upon that bond for the amount of the judgment; but the execution of that bond gives no right to render a judgment in the present action against the obligors thereon. The judgment therefore against him must be reversed, and the case remanded for a new trial. As to the other plaintiffs in error, it will be affirmed.

One-half of the costs of this court will be taxed against the defendant in error, and one-half against the two plaintiffs in error against whom the judgment is affirmed.

■ All the Justices concurring.