182 Iowa 745 | Iowa | 1918
The plaintiff, the defendant, and one Ruby, are farmers residing on separate farms in the same general neighborhood in Buena Vista County. Ruby was about to hold a public sale of property on his farm, and the defendant, Ullritch, having a considerable number of young cattle, obtained permission to offer a part of his herd for sale at the same time and place. Among the animals belonging to Ullritch were, as is claimed, ten two-year olds, five steers, and five heifers; and these, being put up for sale, were struck off to the plaintiff, Luther. Not being prepared to take them away that evening, plaintiff paid for the cattle, and left them with Ruby for the night. On the following morning, he returned with a helper, and undertook to drive the cattle home. Unfortunately, the road taken by him led directly past the defendant’s farm, where the cattle had previously been kept, and on reaching that place, they broke
“We then Avent around the barn, and there was some of them there Avhere I had been feeding. Then we tried to sort them out, and I had them all sorted out for him. And tiren there Avas one he claimed only Aveighed 400 pounds. He says, ‘I don’t want that one, it wasn’t in the bunch.’ And I says, ‘It was.’ He said before he would take that one, he would leave them all. I said, ‘Suit yourself about that.’ The one he objected to, and said wasn’t on the sale, and only weighed about 400 pounds, was a red heifer, two years old. It was awful poor, and the hogs had been after it, you know, when I bought it at Fauglan’s sale, and eat off a piece behind. That Avas the reason it was so poor. It was a good heifer, though, just 'the same. That is the one. And when he bought it, it wasn’t so poor, — it was a good one. It weighed about 500 pounds.”
Plaintiff’s version of the same incident is very different. He says :
“He kept saying, ‘I will pick out one of them that you*748 got.’ He did not say which one he would pick out. He referred or pointed to a heifer that was sickly like, and only weigh about 400 pounds. She was up by the barn, standing there shivering. This was not one that I bought at the sale. I never saw that one there. He says, ‘You will take that one there or none.’ ‘Well,’ I says, ‘none it will be for today, but I will get them some time.’ ”
On the following day, the plaintiff returned to defendant’s place, and the effort to select the ten head of cattle was resumed, without coming to any agreement. It is plaintiff’s claim that defendant insisted that he alone should make the selection. At this time, too, dispute arose as to the identity of one or two other animals. For example, there were two white-faced heifers in the herd. One of these, which was afterward taken under the writ of replevin, defendant insists was not in the number sold, and he points out another of similar description as being the one belonging to plaintiff. To identify the heifer, he produces as a witness the man who raised it, and who was present at the Ruby sale. The witness corroborated defendant’s claim, but says of the two animals:
“They looked very much alike. About the same size, same color, and same general appearance. Had I not raised one of them, it would have been hard for me to tell them apart. * * * The distinguishing mark is just a little spot of red that is in one’s face that isn’t in the other. A little spot in the left side of the left cheek.”
The dispute remaining unsettled, the plaintiff began this action in replevin. The writ was served by taking the ten head claimed by the plaintiff. The petition is in the usual form. The defendant denies plaintiff’s ownership of the cattle taken under the writ. In a second count of his answer, he recites the fact of the mingling of the cattle and the inability of the parties to agree upon the identity of those belonging to plaintiff, and alleges that the dispute was adjusted and settled between them by an agreement to can
“The day the sheriff came to get the cattle, all I said to Luther was, ‘Be sure to pick your cattle.’ After the cattle were picked out, and they were taking them away, the sheriff was there a little longer, and I had a little talk with him.' Q. To refresh your recollection, Mr. Ullritch. Did you say anything to the sheriff before they took the cattle away, and while Mr. Luther was still there, in regard to any particular ones they had picked out there? A. No, sir. Q. You did have some talk with the sheriff just after Luther and his hired man drove the cattle away ? A. Yes. Q. And while the sheriff was still there on the grounds? And that talk was in relation to these cattle? A. Yes, it was. Q. Now I will ask you to tell what that talk was with the sheriff at that time. (By Mr. Faville: That is objected to as immaterial, and hearsay. It couldn’t possibly bind Luther. By Mr. DeLand: If the court please, this question is asked in this way, after showing the connection, upon the principle that the sheriff was there as the agent of the plaintiff and sent there for this purpose, and consequently the talk had at that time was part of the res gestae, and was part*750 of the proceedings that were going there on the part of the sheriff in connection with his duties for which they sent hiru there as their agent. By the court: Sustained. Defendant excepts.)”
Other evidence offered by plaintiff in rebuttal was objected to as being properly matter in chief, but was allowed to go to the jury. The order of introducing evidence is controlled by the discretion of the trial court, and nothing in'this case shows any abuse of that discretion.
There is one sufficient answer to this criticism. The cross-examination related wholly to the alleged settlement and agreement to rescind the sale and return the purchase money, and, as we shall hereafter note, there is no competent evidence on which the jury could find that any such settlement or compromise was ever had.
IV.The controversy is one of fact, and the facts are mostly of a petty and trifling character. Whatever may be
In so far as the case has any merit, it turns wholly upon the facts from which the identity of the animals in question is to be found; and this was, as we have said, a matter for
Tbe judgment below will, therefore, be — Affirmed.