The appellant makes the point that the evidence shows the acts complained of were done with the consent of the plaintiff’s intestate, and that, therefore, the verdict of the jury cannot stand. The court instructed that if the jury found from the evidence that the defendant entered upon the land in question by and with the consent of plaintiff, and under such consent, and by and with the permission of plaintiff, cut the hay in dispute, then the plaintiff could not recover, and their verdict should be for the defendant. If, therefore, the evidence does show that the hay cut upon the land was cut with Mrs. Peterson’s consent, and that the defendant entered upon the land with the original plaintiff’s consent, the appellant’s point must be sustained. Now, when we come to look at the evidence, we find that the plaintiff’s intestate not only failed in her proof of a trespass, but, by her own witness, established the fact that the entry upon the land in question was made in accordance- with her expressed permission and consent. The plaintiff herself testified that she and the de
It will be observed that the plaintiff nowhere testified directly that an agreement was made, or denied that one was not male, with Hawks, as testified to by Hawks; but she does say that Savery cut one-half of the hay, and that she cut the other half. It is true, she states that there was no arrangement in 1891 with Savery, but she tells of the visit of Hawks to her, whereat they talked about cutting the hay, and that Hawks that year loaned .her his mower. When the plaintiff was recalled on the trial, and testified that she knew nothing about the Cable company cutting hay (of which company Savery was superintendent, it appears), she said that she and Savery had quarreled about a settlement, and that Savery had agreed to pay her for the hay “if he won the case.” There was also at that interview between plaintiff and defendant a question as to which one was granting the privilege of cutting the hay to the other, Savery saying, “I will let you cut it,” while the plaintiff said, “I will let you cut;” and thereupon Savery loaned plaintiff the mower wherewith she cut the hay. When we consider the entire evidence of the plaintiff herein, in connection with the positive and uncontradicted statements of her own witness Hawks that there was an arrangement by which she permitted him to cut the hay in 1891, it seems to us clear that the hay cut in 1891 and the entry upon the land were by the consent of plaintiff.
The respondent suggests in the brief of her counsel that it is apparent that the defendant intended to take the hay at all hazards and in any event, and that, if there was any agree
The further point raised by the appellant, that the evidence shows that the acts of Hawks and Savery were those of the Cable company is immaterial, for whether the acts done were those of the Cable company or of Savery is unimportant, under the view we take of the evidence. The judgment is reversed, and the cause remanded, with directions to the district court to grant a new trial.
Reversed and Rema/naed.