28 Mont. 183 | Mont. | 1903
prepared the opinion for the court.
In order to arrive at an understanding of the issues involved in this appeal, it is necessary to- state the case somewhat in detail.
It appears from the record that one Jacobson and Hyrum Graehl were engaged in the grocery business in Butte for some years prior to 1894 under the name of Jacobson & Graehl, and that Lorenzo Graehl bought Jacobson out, probably in 1894, and the firm then became Graehl & Graehl. On August 19. 1890, H. Graehl and A. N. Yoder executed to- Hattie 0. Libby a note for $300, due in six months after date, and bearing interest a.t one per cent per month. On August. 22, 1893, II. Graehl and A. N. Yoder executed to. Hattie O. Libby a note for $350, due in one year after date, and bearing interest at one -and one-half per cent, per month. On January 22, Í896, Graehl & Graehl and A. N. Yoder executed to W. A. Clark & Broi. a note for $300, due in sixly days after date-, and bearing, interest at one- per cent, per month. At the time of the trial, Hattie C. Libby had become the wife of the plaintiff, Yoder. A bill of sale was introduced in evidence, which purports to have been executed by Lorenzo to Hyrum Graehl on March 6, 1896, and which conveys to Hy-rum all of Lorenzo’s right, title and interest in the firm and business of Graehl & Graehl for a consideration of $500. After executing this bill of sale, Lorenzo went prospecting in Madison county, where he remained some six or seven months. On
Plaintiff states his cause of action in two. counts. The first is in the usual form of an action for damages for the wrongful conversion of personal property, the plaintiff praying for judgment against the defendant in the sum of $1,150. In the second cause of action the plaintiff alleges “that on the 18th day of March, 1896, he was the owner and in possession, and entitled to the possession, of all the following described property, to-wit.” Then follows a description of the personal property as shown in his bill of sale, and then this allegation: “That on the said 18th day of March, 1896, plaintiff was then and there the owner of said stock of goods* and of a leasehold estate in and to the said storeroom and premises, and was'engaged in a profitable business in selling and dealing in groceries at retail at No. 101 South Main street, Butte, Montana.” Then, “that on the said 18th day of March, 1896, the defendant wrongfully and without the consent'of plaintiff entered upon the said premises, and ousted and ejected plaintiff therefrom, and took possession of the said stock of goods, and wholly deprived plaintiff of his said stock of goods and of his said storeroom and place of business, and wholly destroyed plaintiff’s said business, to the damage of plaintiff in the sum of one thousand dollars.”
The defendant denies generally the allegations of both counts of plaintiff’s .complaint, and pleads justification as to each. He alleges that, as the sheriff of Silver Bow county, he took the personal property described in plaintiff’s complaint under and by virtue of a writ of attachment issued out of the district court of his county in an action wherein A. H Bray was plaintiff and the firm of Graehl & Graehl were defendants, and that all of the property so attached was the property of Graehl & Graehl at the time of the attachment; “that the plaintiff herein, A. N. Yoder, claims to have been entitled to the possession, and to have been the owner of all the said property attached as aforesaid, and described in the complaint herein, on said March 18,
The plaintiff, by replication, denies all the affirmative matter asserted in the answer.
It is proper to suggest that the pleadings of the respective parties were treated by them as sufficient in the court below. Upon the trial the jury found for the defendant. From an order denying plaintiff’s motion for a new trial, he prosecutes this appeal.
1. At the trial the plaintiff was asked: “Q. Do you know anything relative to the value of the good will of the business which you had purchased there on the 17th day of March ? A. Yes; I think I do. Q. What was the good will of that business worth?” This latter question was objected to “for the reason that it calls for a speculation and is too remote.” The court sustained the objection, and plaintiff assigns error. The court’s ruling was correct, but for other reasons than those
The question asked called for evidence which was wholly inadmissible for any purpose and it was therefore subject to a mere general objection, which that urged was, in effect
2. The plaintiff was asked the following question: “Taking into consideration the fact that you had a leasehold interest in that storeroom, and that you were deprived of the possession of the storeroom, and that you were deprived of a building to carry on'the business, by reason-of the sheriff of Silver-Bow county, Montana, taking possession of that storeroom, what amount of damage did you suffer by reason of the taking of the building and good will of the business and storeroom by the sheriff?” This was objected to “for the reason that such damage is -merely speculative or prospective damage, and does not relate to the actual damage, and there has been no evidence offered tending to show that the business was carried on there at any profit, but, rather, at a loss.” The court sustained the objection, to which plaintiff takes exception.
In this ruling the court did not err. The objection amounted to a mere general one. When an “offer of testimony includes that which is admissible with that which is not, and the competent and incompetent are blended together, it is not the duty of the court to separate the legal from the illegal, but the whole may be rejected when objection is made,” and the party against
3. The plaintiff complains because tbe court refused to strike out certain incompetent testimony of tbe witnéss Bray. An inspection of tbe record discloses tbe fact that tbe plaintiff sat by and allowed it to go to tbe jury without objection, and aftei'ward moved to strike it out. If tbe testimony bad been favorable to plaintiff, presumably ba would bave been satisfied to allow it to remain. In permitting it to be adduced without objection, be took tbe chance of being injured, should it prove unfavorable. It is tbe settled law that one must object to improper testimony when it is offered, or abide tbe result. Tbe failure to object at tbe proper time waives tbe error. (Jones on Evidence, See. 898; Hughes v. Ward, 38 Kan. 452, 16 Pac. 810; Cleveland C., C. & I. Ry. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569; Dallmeyer v. Dallmeyer (Pa.), 16 Atl. 72; Chicago, St. L. & P. R. R. Co. v. Champion, 9 Ind. App. 510, 36 N. E. 221; Perkins v. Brainerd Quarry Co. (Com. Pl.), 32 N. Y. Supp, 230; Haverly v. Elliott, 39 Neb. 201, 57 N. W. 1010; Vermillion Artesian Well, etc. Co., v. City of Vermillion, 6 S. Dak. 466, 61 N. W. 802.) An exception toThis ruléis that when testimony is offered which may be competent upon tbe showing made, and its incompetency is afterwards developed, either by tbe subsequent testimony of tbe witness, or upon bis cross-examination, or when incompetent testimony is volunteered by tbe witness in response to a proper question, it should be stricken out on motion.
4. Tbe court gave tbe jury the following instruction at the request of tbe defendant: (No. 1) “If you believe from tbe evidence that tbe alleged transfer of bis interest in tbe partnership from Lorenzo Graehl to Hyrum Graehl was made without consideration or secretly, or for any fraudulent purpose, or to allow said Hyrum Graehl to make a transfer, of tbe partnership property to Yoder upon the notes given in evidence, and with intent to binder, delay, and defraud creditors of tbe partner
Another ground of criticism of this instruction is that there was no evidence adduced by either plaintiff or defendant as to whether the ownership of the notes was concealed by any one. Instructions must be warranted by the pleadings and evidence. (Brownell v. McCormick, 1 Mont. 12, 14 Pac. 651; Kelley v. Cable Co., 1 Mont. 70, 14 Pac. 633; Walsh v. Mueller, 16
5. Instruction No. 2 is erroneous because not warranted by the evidence. The alleged sale to plaintiff was made by Hyrum Graehl, and not by the firm of Graehl & Graehl. This is one of the undisputed facts in the case.
6. We cannot approve of instruction No. 5. It is argumentative in form, and likely to prejudice the jury.’ The principles of law treated by it may be easily stated to the jury without resort to innuendo.
I. In instruction No. 6 the court commented on the weight to be given the evidence of the parties 1» the action This was error. “The jury being the sole judges, of the weight to be given to the testimony, the court should not tell them what particular weight to give to any portion thereof.” (State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655; Wastl v. Montana Union R. R. Co., 17 Mont. 213, 42 Pac. 772; Knowles v. Nixon, 17 Mont. 473, 43 Pac. 628; State v. Gay, 18 Mont. 51, 44 Pac. 411.) And while the court gave the true rule at the end of this somewhat lengthy instrnotion, that did not remove or overcome the objectionable feature mentioned ; as completed, different portions of the instruction are conflicting, and it is therefore misleading.
8. Instruction No. 8 is as follows: “If you find from the evidence that the alleged sale fromi Lorenzo Graehl to Hyrum Graehl about March 6, 1896, was not made for valuable consideration, or in good faith as to the creditors, and was not'published or given notice of to the creditors, but remained secret, then you will not consider such transfer as vesting the- title to said property in Hyriim Graehl alone; but if you find that the Graehls or Hyrum Graehl continued to carry on business at the same place in the same manner as before, under the name and
9. Instruction No. 9 is incorrect because not warranted by the evidence. That Lorenzo Graebl conveyed bis interest in tbe partnership to Hyrum by bill of sale dated March 6, 1896, was conceded. Therefore tbis instruction is erroneous for tbe same reasons given as to instruction 8.
10. Instruction No. 16 reads,, in part, as follows: “Tbe. jury is instructed that tbe burden of proof is on tbe plaintiff to show by the preponderance or greater weight of tbe evidence bis right to tbe possession of tbe property in controversy.” In tbis instruction tbe court should not have used the words “tbe property in controversy.” Tbe plaintiff’s leasehold interest in tbe storeroom was a part of tbe property in controversy, and tbis tbe defendant did not levy upon. So1 far as tbe record is concerned, tbe defendant was a trespasser in tbe storeroom, of which be retained possession for about forty-five days. While there was no proof as to any special damage sustained by plaintiff upon tbis branch of tbe case, be was, under tbe proofs adduced, entitled to nominal damages for tbe defendant’s trespass.
11. Defendant’s instruction II is erroneous for tbe sáme reason assigned as to instruction No. 16. It should also have correctly stated tbe initials of plaintiff’s name.
12. Tbe court instructed the jury at great length. Eighteen pages of the record are taken up. by tbe instructions. Wbetber they are all in tbe record, we do not know, but it appears to1 con
How the jury'could have been aided in its labors by this mass of reading is conjectural. Aside from being of such great length, the instructions are replete with repetition and legal verbiage. Instructions are given to a jury to enlighten, not to confuse, it. The court should not attempt to' instruct á jury as to all the law extant upon the particular subject under consideration. In the case at bar a few brief and clear instructions would have been ample to aid the jury in its investigations.
For the reasons given, we are of the opinion that the order should be reversed, and the cause remanded for a newr trial.
Pee Cueiam. — For the reasons given in the foregoing opinion, the order is reversed, and the cause is remanded for a new trial.