83 P. 570 | Utah | 1905
This was an action of replevin to obtain possession of a certain number of sheep or judgment for their value in case delivery could not be had. It appears from the evidence that the plaintiff, his wife, Robert Cowan, and Mrs. Mary E. E. Hayes, owners of a herd of sheep, leased the same to the defendant Robert Kirk in September, 1900, for the term of one year. At the expiration of the year, on September 27, 1901, the owners, Wetzel and wife and Mrs. Hayes, again leased their sheep, in all about 2,722 head, on similar terms, to Robert Kirk for another year. This lease, so far as material to this decision, reads: “The second party agrees to pay one and one-half pounds of wool if said wool sells for eight cents per pound, and one and three-fourths- pounds- if said wool sells for ten cents per pound, and two pounds per head if the said wool sells for twelve cents per pound, and ten lambs to the one hundred sheep let wool sell at any of the above prices. The party of the second part also agrees to pay the taxes and all other assessments pertaining to said sheep, and will earmark and wool brand them at the proper time, and watch over them in a herdsmanslike manner, and keep said sheep as free from scab as possible. The party of the second part agrees that at the expiration of this lease, if the parties of the first part demand said sheep, through failure of said second party to keep the agreement, he will return to the first parties the proper amount of lambs, ewes and wethers to form a good.stock herd of sheep, with the follow
The decisive question on this appeal is whether the transactions between the lessors and lessee constituted a sale or a bailment. Appellants contend that they amounted to a sale, while
It follows that the contract under which the defendant Kirk had possession of the sheep at the time of the execution of the mortgage being but a lease, he had no legal right to dispose of the heni either by mortgage or otherwise, and that
Tbe judgment appealed from is affirmed, witb costs.