Sheaffer v. Sensenig

Opinion by Mr. Justice McCollum, In this case the defendants are charged with having taken [640] from the plaintiff’s stable, and appropriated to their own use, forty-four head of his cattle. The defendants admit the taking but deny that the plaintiff was the owner of the cattle or that in taking them they were trespassers. It is undisputed that whatever right or interest the plaintiff had in the cattle at the time of the alleged trespass he acquired by the agreement or contract with the defendants under which they were delivered to him in November, 1888. The defendants allege that the plaintiff received the cattle as their bailee, while he alleges that they were delivered to him as a purchaser of them. The defendants further allege that they were authorized by their agreement with the plaintiff to take any or all of the cattle they had delivered to him whenever they saw fit to do so, and were required by it, on their sale of the cattle, to compensate him for feeding and caring for them, in accordance with its terms. A specification of the terms or measure of compensation is unnecessary, because it is not considered of any importance in the decision of the issue made by the pleadings. If the plaintiff was the sole owner of the cattle, the taking of them by the defendants being admitted, he was entitled to recover in this action the full value of them. If, on the other hand, he was merely a bailee of the cattle, and the defendants were authorized by the agreement under which he received them to take possession of and sell them whenever they thought best he was not entitled to recover anything in it. In such case if the defendants refused to compensate him for care and feed, as they ought and had engaged to, his proper remedy was an action on the agreement for the breach of it. This was the view taken of the case by the court below, and in it we concur. It regards the issue between the parties as involving a question of fact determinable by the jury on the evidence in the case. What was the transaction between the parties? Was it a sale of the cattle or a bailment of them, with a right in the defendants to resume possession of them when they pleased to do so ? In support of his claim the plaintiff testified distinctly that he bought the cattle from the defendants and gave to them his notes in payment of the price agreed upon. The testimony of the defendants was equally positive and clear that the plaintiff was a mere bailee under an agreement which acknowledged their ownership of the cattle and their right to take any or all of them into their possession [641] at any time. The notes given by the plaintiff to the defendants at or about the time the cattle were delivered, and the memorandum made by the defendants in connection with the transaction, were, unexplained, corroborative of the plaintiff’s claim. But the defendants’ explanation of the memorandum, of the use to be made of the notes and of the terms on which they were given, materially impaired their corroborative force. The testimony explanatory of these matters was competent. It was not intended to, and it did not, modify a written contract. Parol, evidence is admissible to explain a receipt, an entry in a bankbook or account book, or the purpose for which a note was given. The defendants testified that the plaintiff on several occasions expressed himself as satisfied with what they had done, and five disinterested witnesses testified that he made statements or declarations to them, or in their presence, of the same nature and to the same effect. Whether the statements and declarations so made be regarded as evidence of ratification of, or acquiescence in, what the defendants had done, they were clearly and strongly corroborative of the defendants’ claim respecting the agreement under which the cattle were received by the plaintiff. The answer of the learned judge to the defendants’ second point must be read in connection with the general charge. Before and after the answer in question, the jury were positively and emphatically instructed that if the plaintiff was the owner of the cattle he was entitled to their verdict for the value of them. The concluding words of the charge were: “ If you find there was an absolute sale of the property to Jacob F. Sliaeffer in November; that he was the sole owner of these cattle when they were taken, then you should find a verdict in his favor for the amount claimed. If you find they were not sold absolutely, but let on feed, and that the defendants, Sensenig and Frantz, had a right to take and remove them under their contract, when they chose, and they did so remove them, your verdict must be for the defendants.” Assuming that the answer to the defendants’ second point admits of the construction contended for by the plaintiff, there is no reason to believe that the jury were misled by it. We are clearly of the opinion that in the light of the general instructions to the jury we ought not to reverse the judgment on the eighth assignment. The material questions raised by the spe [642] cifications of error have been duly considered by us, and our conclusions respecting them are adverse to the contention of the plaintiff. The other matters complained of need not be specifically discussed or noticed. Judgment affirmed.