163 P. 1102 | Utah | 1917
The plaintiffs sued the defendant in the district court of Wasatch county to recover the sum of $487.11, which, they alleged, the defendant agreed to pay them for a certain camping outfit and for their interest in a certain band of sheep. In view of the contentions made by the defendant, as will hereinafter more fully appear, we append the complaint and answer just as his counsel have set them forth in their printed abstract. The complaint reads as follows:
“Plaintiffs complain of the defendant and allege: (1) That on or about the 6th day of May, A. D. 1913, the plaintiffs had a lease of certain sheep then in the possession of plaintiffs at Wasatch county, Utah, and also were the owners and in possession of an outfit for camping and supplies and food for use in the care and herding of said sheep; and that the defendant then and there promised and agreed with plaintiffs to pay to plaintiffs for the release of said sheep and for the outfit and supplies aforesaid, the sum of $487.11, and that in consideration of the promise and agreement of the defendant aforesaid, the plaintiffs released and delivered the said sheep to the defendant and released and delivered the aforesaid outfit and supplies and food to the defendant. (2) That the said sum of $487.11 has not been paid nor any part thereof.' Wherefore plaintiffs demand judgment against the defendant for the sum of $487.11, with legal interest thereon from the 6th day of May, A. D. 1913, until paid, and for their costs in this action.”
The answer reads as follows:
“Comes now the above-named defendant and for answer*316 to plaintiffs’ complaint herein denies specifically and generally each and every allegation in plaintiffs’ complaint contained. Wherefore defendant prays judgment that the said plaintiffs take nothing by their said action and for costs herein. ’ ’
Upon the foregoing issues a’ trial to a jury resulted in a verdict in favor of the plaintiffs for the amount claimed. Judgment was entered upon the verdict, and the defendant appeals.
The errors assigned all relate to the rulings of the court in excluding certain evidence which was sought to be elicited by the defendant on cross-examination of the plaintiffs, who were witnesses in their own behalf, and to the exclusion of a certain letter offered in evidence by him. Briefly stated, the alleged errors arose as follows: At the trial plaintiffs substantially proved the allegations of their complaint. Upon their cross-examination, however, they admitted that they had leased the sheep in question from one Towanta, and that they were to receive a certain amount of the wool produced from said sheep and a certain amount of the increase thereof for herding and caring for them for a stated number of years. They also testified that the other property, consisting of a camping outfit, that is, a herder’s wagon, goods, and other supplies, belonged to them. They further testified that the defendant agreed to pay them for their interest in the sheep and for their camping outfit and supplies the amount stated in the complaint. The defendant denied that he purchased plaintiffs’ interest in said sheep or camping outfit, but claimed that he obtained possession of the sheep and camping outfit with the consent of the plaintiffs as a subagent in the employ of the so-called Indian Service of the United States government, and that he took possession thereof under and by virtue of the Revised Statutes of the United States, Sections 2147, 2148 (U. S. Comp. St. 1913, Sections 4150, 4151) which read as follows:
"Sec. 2147. The superintendent of Indian affairs, and the Indian agents and subagents, shall have authority to remove from the Indian country all persons found therein contrary to law; and the President is authorized to direct the military force to be employed in such removal.
*317 ‘ ‘ Sec. 2148. If any person who bas been removed from tbe Indian country shall thereafter at any time return or be found within the Indian country, he shall be liable to a penalty of one thousand dollars.”
It is also claimed that he simply promised the plaintiffs that he would ascertain what they were entitled to, if anything, for herding the sheep and for the property in question, and if their, claims were just, would recommend their payment by Towanta, etc.
The defendant, also, on cross-examination, attempted to prove certain facts, as will appear from the following questions which were propounded to the witnesses by his counsel, namely:
‘ ‘ Q. Do you know as to whether or not there was a regularly established (Indian) reservation there at the time?’.’ (That is, where the sheep were when taken by the defendant.) ‘ ‘ Q. Before the last conversation with Towanta and his wife why did you go to Mr. Martin?” (Mr. Martin was the government Indian agent, and the Towanta named was the owner of the sheep in question.) “ Q. Do you know upon what lands, or upon what territory, the herding [of the sheep in question] was done?” “Q. Had you, or anybody representing you, to your knowledge, had any conversation with the agent, Mr. Martin, or anybody else, with respect to what was done with Towanta’s sheep?” (The sheep in question.) “Q. And whom did you see at the post?” “Q. Now, let me ask you what you went over to the post for ? ”
“In this case the principal question for you to decide is whether or not the defendant, John Farrell, agreed to pay to the plaintiffs a certain sum of money for the release of the sheep mentioned in the evidence in this case, and for the outfit and supplies delivered by the plaintiffs to the defendant. If you find from the preponderance of the evidence in this case that the defendant, John Farrell, promised and agreed to pay to the plaintiffs for the release of said .sheep and for the delivery of said outfit and supplies a certain sum of money, it will then be your duty to find for the plaintiffs in this action, and to award the plaintiffs judgment for such sum of money, if any, which you find from the preponderance of the evidencp that the defendant agreed to pay to the plaintiffs, together with interest thereon from January 1, 1914, at the rate of 8 per cent, per annum.”
It follows, therefore, that whatever view may be taken of this case the alleged errors are not of that character which authorizes us to interfere with the judgment.
The judgment is-- therefore affirmed, with costs to plaintiffs.