Barber v. Harper

OPINION OF THE COURT. M’FIE, J. — Plaintiff in error, assigned several errors, three of which relate to the court’s instruction to -the jury to find for the defendant in error. The fourth is that the court erred in permitting the plaintiff in the court below to testify that he was the owner of the S. U. E. brand. The fifth, alleges that the court erred in failing to require the plaintiff in the court below to show that the brand was recorded, and the last error assigned was upon the court’s overruling the motion for a new trial. 1 Under the terms of the contract of sale, the plaintiff in error not only sold to the defendant in error all of the cattle owned by her, branded S. U. E. and cross, but she sold the brands. Having sold the brands, and also the cattle branded in these brands, the title passed immediately to the defendant in error, to all the cattle, thus branded, which the plaintiff in error owned, and he had a legal right to possession of the same. 2 3 Under the terms of the contract, Mrs. Barber agreed to round up and deliver to the defendant in error at least two hundred and seventy (270) bead of cattle thus branded, and in the event of her failing to deliver this number she agreed to allow twent}*' ($20) dollars per head for each animal short of that number. There is no dispute of the fact that only two hundred and fifty-nine (259) head of these cattle were delivered, nor of the fact that Mrs. Barber paid the difference by delivering to the defendant in error eleven head of horses at the same price. By delivering the eleven head of horses Mrs. Barber did not thereby repurchase any of the cattle sold under the contract so as to reinvest her with title thereto, but gave the horses in lien of money which she eonld have been required to allow upon' her failure to deliver the two hundred and seventy (270) head of cattle under the obligation of her contract. By the bill of sale executed and acknowledged as late as August 5th, 1902, it is distinctly shown that Mrs.' Barber intended to and did sell to Harper all of the cattle which she ovvned in the S. TJ. E. and cross brands, as the bill of sale amounts to an interpretation of the contract by Mrs. Barber herself, sometime after the contract was executed and the animals were delivered under its terms. That the two animals in controversy in this case were owned by Mrs. Barber, at the time she entered into this contract by which she sold the cattle to Harper, is shown by the fact that Mrs. Barber endeavored to have Mr. Harper’s agent, in the absence of the cow and yearling, accept the same as delivered under the contract. Mrs. Barber so testifies herself. Mrs. Barber had the privilege and opportunity afforded her to deliver these animals, but she failed to avail herself of them and this incurred the penalty provided in the contract for failure to deliver them. When the contract and bill of sale were introduced in evidence, providing for the sale of all of Mrs. Barber’s cattle in the >S. F. E. and cross brands, to the defendant in error, and there, being no dispute as to the delivery of the cattle and horses, to the number of two hundred and seventy (270) head under the contract: and the further proof that Mrs. Barber requested the defendant in error and his agent to accept tire animals involved in this suit, which wore at that time in the possession of Mr. Gonzales, without formal delivery thereof, the defendant in error, plaintiff in the court, below, had established his right to the possession of the animals replevied, by evidence which the defendant in the court below could neither dispute nor overcome, and it follows that the court committed no error in instructing the jury to find for the defendant in error. Indeed it was the duty of the court under the decisions of this court to so instruct, as the defendant in the court below had failed to introduce any testimony showing her right of ownership or possession, of the. animals replevied. The contract and bill of sale determined the rights of the parties in these animals and they were undisputed. Armstrong v. Aragon, 79 Pac. (N. M.) 211; United States v. Gumm Bros. 9 N. M. 616; Candelaria v. A. T. & S. F. Ry. Co., 6 N. M. 266; Railroad Co. v. Huston, 95 U. S. 697; Schofield v. C. & S. P. R. R. Co., 114 U. S. 619; D. L. & W. R. R. Co., v. Converse 139, U. S. 469. The fourth assignment of error, is not well taken. Under the evidence in this case, this written contract provided that the ownership of the brand should pass to the defendant in error. He. has a right to prove the ownership of that brand, not only by the written contract but also by oral evidence for the purposes of this case, and the same evidence discloses the fact that it was unnecessary to prove that the brand was recorded, otherwise than by the contract which recited such fact, as contended for in the fifth assignment of error. It is manifest from what .has been said, that the court did not err in overruling the motion for a new trial in the court below, as the evidence clearly warranted the - court below in directing the jury to return a verdict for the defendant in error, and in entering judgment thereon. The judgment of the court below is affirmed with costs. William J. Mills, C. J., Wm. H. Pope, A. J., Edward A. Mann, A. J., Ira A. Abbott, A. J., concur. Parker, A. J., having tried the case below did not participate in this decision.