Southern Car Manufacturing & Supply Co. v. Wagner

OPINION OP THE COURT. ABBOTT, J. The assignments of error which we consider relate to the admission of certain evidence which, it is claimed, was not admissible on the issues raised by the pleadings, and the refusal to admit certain evidence offered by the plaintiff. 1 The fourth and fifth assignments relate to evidence obtained from Wiggs on cross-examination by the defendant, that he, Wiggs, owned all but five shares of the stock of the plaintiff corporation. The record does not disclose the ground of its admission. If it was admitted for the purpose, as the plaintiff suggests, of proving that the acts of Wiggs, as an individual, were the acts of the corporation for the reason that he owned practically all of its stock, that was, of course, error, since corporate action is legally distinguishable from that of its stockholders as individuals, even though they own all the stock. But we are not prepared to hold that the evidence was not admissible for any purpose which, in the absence of specification in the record, we should have to do if we sustained the plaintiff’s contention. -The facts that Wiggs was an officer and stockholder of the plaintiff corporation were at least admissible on the question of the credibility of his testimony. 2 The seventh assignment relates to the testimony admitted to show that the defendant and Wiggs owned the property in question as partnérs or jointly. Under the general denial of the plaintiff’s ownership, title in another way may be shown. “The plaintiff’s allegations cannot be true because of certain other facts which are inconsistent with them.” Bliss, Code Pleading, Sec. 327; Pomeroy’s Code Bemedies, Sec. 553; Robinson v. Frost, 14 Barb. 536. The eighth and ninth assignments of error are based on the admission of evidence that, subsequently to the alleged conversion, the plaintiff ratified the removal of the property in question to New Mexico, and its retention there by the defendant, and on the instructions to the jury on that point, the claim being that the alleged ratification was new matter and should have been pleaded to warrant the introduction of the evidence on that point. The court instructed the jury that “although you may find that at the time the defendant brought the property from Pe-trolia, Texas, to New Mexico, he had no right to the possession thereof and that said act on his part was wrongful, and that said property at the time belonged to the plaintiff corporation”, yet, if the plaintiff afterwards did certain things which would amount to ratification of what the defendant had done in relation to the property, they should find for the defendant. ■3 If the alleged ratification was included in the general denial made by the defendant, then the evidence in relation to it was properly submitted and the instruction was appropriate. If it was new matter, it should have been specially pleaaed. Comp. Laws of N. M., 1897, sub-sec. 40, Sec. 2685. The rule as to new matter is thus stated in Bliss on Code Pleading, Sec. 330: “Keeping in view the logical rule that the new facts which may be proved under a- denial are'those which show that the plaintiff’s statements are untrue, also that facts which are consistent with their truth, but show that he has no •cause of action, are new matter, to be pleaded, we can seldom be deceived as to what may and may not be thus proved.” The plaintiff alleged conversion at a certain time. The fact, if it was one, that at a subsequent time it ratified the acts which constituted the alleged conversion might have deprived.it of its right of action, but would not be inconsistent with the allegations that there was a conversion. Bliss, Code Pleading, Sec. 330; Pomeroy’s Code Remedies, Secs. 567, 568; Coles v. Soulsby, 21 Col. 47; N. Y. Ins. Co. v. Natl. Prot. Ins. Co., 20 Barb. 468; Sup. T. K. of M. v. Stensland, 105 Ill. App. 267. It cannot be said that the error was harmless to*the plaintiff, since it was not appraised by the pleadings that it had to meet the defense of ratification. New matter- “must be specially pleaded' so that the plaintiff may be informed of its existence and the use to be made of it by the defendant.” Pomeroy’s Code Remedies, Sec. 566. 4 The twelfth assignment of error relates to the refusal to permit the introduction of evidence of a bond signed and sworn to by the defendant and given for the release of the property in question from the attachment of it made by the plaintiff in this cause. The bond contains the statement that “certain property and effects of the defendant x x x have been attached and seized”, and was offered by the plaintiff as a part of the record in the case and to show that the defendant was claiming the property was his and not the property of the plaintiff. It is claimed by the defendant that a mere recital in usual form in such a bond has not sufficient probative force to require its admission as evidence. Its force might, for the reasons suggested, be very slight, but the objection does not go, we think to its admissibility. The plaintiff has alleged conversion of the property by the defendant, which the latter had denied, on the ground that he and Wiggs owned it jointly, or that Wiggs was the owner, and he, the defendant, had a special property in it and the right of possession. The statement as to ownership made in the bond was an admission by the defendant in writing, verified by his oath, which bore on the issues thus raised, and should, we think, have been submitted to the jury. This is a well established rule of evidence. Jones on Evidence, Secs. 237, 238, 298; Greenleaf on Evidence, See. 169, et seq; Wigmore on Evidence, Secs. 1048-1058. • Eor the reasons stated the judgment of the District Court must be reversed.