Montgomery v. Brush

Mr. Justice Mulkey delivered the opinion of the Court: No substantial reason is perceived for disturbing the judgment of the Appellate Court. To our minds the case is free from difficulty. On the trial in the circuit court, there was a sharp controversy as to two questions of fact, upon the decision of which it is manifest, from the evidence, as well as the instructions of the court, the case mainly turned. It was claimed by Montgomery, that the one hundred and thirty-one head of cattle belonging to appellees were put in his pasture by Milligan & Mcllvane in part performance of their contract with him, and that at the time he received them, he had no notice of the fact that they were ap23ellees’ cattle, or that the latter had any claim U230n them. On this hypothesis, the court, by a number of instructions, told the jury, that if the evidence sustained this claim of appellant, they should find for him. On the other hand, appellees contended that the cattle in question were 23laced on appellant’s premises by Milligan & Mcllvane, to be pastured, merely, without any understanding, 23urpose or intention, on their 23art, of delivering them to a23pellant, under his contract with them. The jury, upon this 2ilain and single issue, found for the appellees. In doing so, it is manifest that they must have found, as a matter of fact, either that the cattle were not delivered to appellant under his contract with Milligan & Mcllvane, or that he, at the time they were placed in his field, had actual or constructive notice of appellees’ ownership of them, for otherwise, under the instructions of the court, there would clearly be nothing to sustain the finding of the jury. So far as the result is concerned, it is a matter of no consequence which of these facts was found in favor of appellees, for one is just as fatal to appellant’s theory of the ease as the other. "With these questions of fact, of course we have nothing to do, nor with the evidence tending to prove or disprove them, ■except in its relation to the instructions. Appellant makes the point, that to maintain trover it must ■•appear that both the right of property and of possession were in plaintiffs, as against the defendant, at the time of the ¡alleged conversion, and cites a number of authorities in -its support. The rule contended for is, without doubt, the law. Indeed, it is so elementary in its character that the citation ■of authorities in its support was not at all necessary. Conceding the rule, as we do, we nevertheless fail to perceive that it presents any obstacle to the plaintiffs’ right of recovery,— •assuming, as we must, that the jury found the facts to be as claimed by them. Appellant was examined as a witness, on the trial, in his ■own behalf. While so being examined, he was interrogated with respect to what he may have heard Mellvane or Milligan ¡say about how they came to put plaintiffs’ cattle in his field. ■On plaintiffs’ objection, the court excluded the answer to the •question, and this is assigned for error. We have no doubt ■of the correctness of the ruling of the court upon this point. 'The exact question propounded to appellant was this: “Have ;you heard either of them say how they came to put the one hundred and thirty-one head in there,—what they put them in under ? If you heard either of them say, state. ” It will be observed that the declarations sought to be elicited by this ■question are not limited to any particular time or place. Had the inquiry been confined to what they may have said on that subject at the time the cattle were put into the pasture, it would doubtless have been a proper question. Declarations made by any of the parties at that time, expressive of the object of putting the cattle into the pasture, would clearly have been a part of the res gestee, and would have been admissible as such.. But no such a case as that is here presented. By the question propounded it was sought to put in evidence the general statements of persons neither parties to the record nor in, privity with those against whom they were sought to be used. This the rules of law governing the production of testimony forbid. With respect to the instructions, we have no fault to find' with the rulings of the trial court. If any error was committed, it was in the interest of the appellant, and consequently affords no ground for complaint on his part. Appellant’s-refused instructions, we think, were either not the law, or calculated to mislead the jury, and were, therefore, properly-refused. The judgment of the Appellate Court will be affirmed. Judgment affirmed.