129 P. 498 | Mont. | 1913
delivered the opinion of the court.
This is an action in claim and delivery brought by the appellant, who was plaintiff in the district court, to recover possession of twenty-six head of horses or their value, alleged to be $1,900. The complaint is brief and in the form usually employed where the plaintiff makes claim of absolute ownership. The answer denies ownership or right' of possession in plaintiff, and then sets forth that defendant is the owner of the property and has been such continuously since prior to March 1, 1909; that on the last-mentioned date he executed and delivered to the plaintiff a bill of sale for the property in controversy, and contemporaneously therewith he and plaintiff executed an agreement, by the terms of which defendant was given the option to repurchase the property upon paying to plaintiff $1,281.25, with interest from March 1, 1909, at the rate of-per-cent per annum, and also the expenses necessarily incurred in caring for the property. The contract provides for shipping the horses to North Dakota, and further provides that defendant should have - days after the horses reached their destination in North Dakota within which to make payment of the repurchase price. It is further alleged that on March 1, 1909, defendant borrowed from the plaintiff $1,281.25, and that it was to secure such loan that the bill of sale and contract to repurchase were made; that possession of the property was retained by the defendant; that by mistake the contract recited that the horses
1. The principal question raised by the pleadings is whether the transactions between plaintiff and defendant on March 1, 1909, amounted to a mortgage or a conditional sale. There are not involved any rights of creditors or subsequent purchasers or encumbrancers, and the questions at issue are to be determined as between the parties to the original proceedings alone.
While the lien of a pledge is dependent upon possession, the
2. Complaint is made that oral evidence was admitted which,
3. Complaint is also made that the trial court permitted too wide a latitude in the cross-examination of plaintiff and his witnesses ; but with this we do not agree. The examination was well within the limits prescribed in State v. Rodgers, 40 Mont. 248, 106 Pac. 3, State v. Howard, 30 Mont. 518, 77 Pac. 50, State v. Barrett, 43 Mont. 502, 117 Pac. 895, and Knuckey v. Butte Electric Ry. Co., 45 Mont. 106, 122 Pac. 280.
4. It was not necessary for the defendant to prove a tender. The plaintiff in his reply having denied the existence of a debt,
6. And it was not error for the court to refuse plaintiff’s requested instruction 15. In the absence of supplemental plead-
7. Likewise no prejudice resulted to the plaintiff from the failure of the trial court to give his offered instruction 18; for by special finding No. 1 the jury found according to plaintiff’s theory as outlined in that offered instruction.
8. Error is predicated upon the refusal of the trial court to give plaintiff’s offered instruction No. 10, to the effect that
9. Fault is found with the action of the trial court in submitting special interrogatories to the jury. Whether special
We have examined every error assigned but have treated only those which appear to us most important. We do not find any reversible error in the record, and the judgment and order are affirmed.
Affirmed.