Ladley v. United States Express Co.

Opinion by Wickham, J., Taking the written contract between the appellant and George H. Cramer, in connection with the testimony of tl e former to [154] the effect that he had sold the horses mentioned in the contract to Cramer, we agree with the learned judge of the court below that the arrangement whereby Cramer got and held the horses in dispute was a conditional sale, rather than a bailment; and if there were nothing more in the case, we would have to affirm the judgment. The evidence, as printed and submitted to us, is somewhat confused and confusing; but we are satisfied, after a careful examination thereof, that enough appeared at the trial to make it the duty of the learned judge to submit to the jury the question whether the appellant, taking advantage of a breach by Cramer of a condition of the contract between them, had not repossessed himself of the horses before the service of the attachment issued by the appellee company against Cramer. There is evidence (see testimony of Samuel Ladley) that, before the attachment was executed, the agent of the express company, who had charge of the legal proceedings, directed the appellant to take his horses home; that the latter did so and, later, hired them to the express company, after which they were attached by the company for Cramer’s debt. If these are the facts, and the jury had so found, then the appellant was entitled to succeed. This branch of the case, however, was entirely ignored or overlooked by the learned trial judge. The first assignment of error, so far, and only so far, as it relates to the binding instruction to the jury to find for the defendant, is sustained. No exception was taken to the alleged refusal of the court below to hear the appellant’s counsel. The second assignment is not considered. It offends against rule 15 of this court, which provides that “ Every error relied on must be assigned particularly and by itself. If any assignment of error embrace more than one point, or refer to more than one bill of exception, or raise more than one distinct question, it shall be considered a waiver of all the errors assigned.” „ The view we take of the transaction between Ladley and Cramer, namely, that under all the evidence it was not a bailment, but a conditional sale, makes it unnecessary to pass directly on the other assignments of error. Judgment reversed and venire facias de novo awarded.