14 N.M. 195 | N.M. | 1907
OPINION OP THE COURT.
The assignments of error which we consider relate to the admission of certain evidence which, it is claimed, was not admissible on the issues raised by the pleadings, and the refusal to admit certain evidence offered by the plaintiff.
The eighth and ninth assignments of error are based on the admission of evidence that, subsequently to the alleged conversion, the plaintiff ratified the removal of the property in question to New Mexico, and its retention there by the defendant, and on the instructions to the jury on that point, the claim being that the alleged ratification was new matter and should have been pleaded to warrant the introduction of the evidence on that point. The court instructed the jury that “although you may find that at the time the defendant brought the property from Pe-trolia, Texas, to New Mexico, he had no right to the possession thereof and that said act on his part was wrongful, and that said property at the time belonged to the plaintiff corporation”, yet, if the plaintiff afterwards did certain things which would amount to ratification of what the defendant had done in relation to the property, they should find for the defendant.
The plaintiff alleged conversion at a certain time. The fact, if it was one, that at a subsequent time it ratified the acts which constituted the alleged conversion might have deprived.it of its right of action, but would not be inconsistent with the allegations that there was a conversion. Bliss, Code Pleading, Sec. 330; Pomeroy’s Code Remedies, Secs. 567, 568; Coles v. Soulsby, 21 Col. 47; N. Y. Ins. Co. v. Natl. Prot. Ins. Co., 20 Barb. 468; Sup. T. K. of M. v. Stensland, 105 Ill. App. 267. It cannot be said that the error was harmless to*the plaintiff, since it was not appraised by the pleadings that it had to meet the defense of ratification. New matter- “must be specially pleaded' so that the plaintiff may be informed of its existence and the use to be made of it by the defendant.” Pomeroy’s Code Remedies, Sec. 566.
• Eor the reasons stated the judgment of the District Court must be reversed.