Kieth v. Kerr

Davison, J. The appellees, who were the plaintiffs, sued Fhirey Kieth, Alexander MeCune, TIenry AL'Oune, H nry Me Lane, and Remiten Lovthorn, alleging in their complaint that the defendants, on December 20, 1857, wrongfully, &c. seized, took into their possession, drove away, slaughtered, and converted to their own use, 16,871 lbs. gross, of hogs, of the value of $1,000, to the plaintiff’s damage, &c. Kieth [285] answered: 1. By a denial. .2. That the property described, «fee. at the time it was taken possession of by him, was in the possession of said Lowhorn, to whom the same had been sold and delivered by the plaintiffs, and that Lowhorn sold and delivered the property to him, Kieth, who, on the day named in the complaint, took possession of it, as he had a right to do, by virtue of said sale and delivery to him, and con verted it to his own use, &c. Lowhorn also filed a separate answer, in which he alleges, “that on December 24, 1857, he contracted with the plaintiffs for fifty-three head of fat hogs, weighing, gross, 1(5,371 lbs., for which he was to pay $3.50 per one hundred pounds, gross weight, on delivery of the hogs, by them to him, at the pens in Montezuma, Parke county, Indiana ; that said hogs were, in pursuance of the contract, weighed on said December 24, and were to be delivered by the plaintiffs in a reasonable time thereafter, at the place aforesaid; but the same were to remain the property of the plaintiffs, until paid for at the pens aforesaid, according to the terms of the contract. Defendant avers that at no time hitherto, has he had possession, or the right of possession of said hogs; that the same were never delivered or tendered to him by the plaintiffs, nor has he paid, or offered to pay, the plaintiffs one cent on said hogs. And now, as at all times heretofore, this defendant disclaims any right of possession in, or to, said hogs, and denies that he ever directed, authorized, or gave any one leave to take possession of them; and this, his disclaimer, he enters in open court, &c. Defendant also denies that he is guilty of the trespasses alleged, &c. The other defendants answered by general denial, &c. The issues having been completed, the cause was submitted to a jury. During the trial, all the defendants, save the McGunes and Kieth, were discharged. And upon final hearing, the jury rendered a verdict in favor of the McGunes, and against Kieth. Judgment, over a motion for a new trial, was accordingly given. Kieth appeals to this Court. While the trial was in progress, the defendants having-on notice to produce, &c., obtained an inspection of a written instrument executed by Lowhorn to the plaintiffs, gave [286] the same in evidence to the jury. The instrument reads thus: “I have this day bought of James and S. P. Kerr, 16,371 lbs. gross, of hogs, amounting to 590 dollars and 48 cents, to be paid for at the pens at Montezuma.” (Signed) “ Reuben Lowhorn.” It also appears that upon the trial, the plaintiffs, over the defendants’ objection, gave in evidence the answer of Low-horn: And further, it appears that the Court, the evidence being closed, thus instructed the jury: “The writing introduced by the defendants, signed by Lowhorn alone, and claimed by them to be the only admissible evidence of the contract between the parties, is not binding on the plaintiffs if not signed by them, and the same being in evidence, does not preclude the plaintiffs from showing by parol testimony that such writing did not embrace the entire contract.” Though various errors are assigned, the appellant, for a reversal, relies alone upon two points, and they only will be noticed: 1. The admission in evidence of the answer of Lowhorn. 2. The instruction relative to the written instrument. The first point seems effective. The defendant claims to have derived title immediately from Low-horn, and his answer is, in effect, the declaration of a vendor, after he has transferred the property sold to 'his vendee, going to impeach the title of the latter; such declarations should not be allowed to work that consequence. Phenix v. Day, 1 Johns. 412. Indeed, the cases on this subject are uniform. “All seem to agree, that declarations made by a person under whom a party claims, after the declarant has departed with his right, are utterly inadmissh ble to affect any one claiming under him. 1 Phil. Ev. 4 Am. ed. note 4, pp. 314-322; Alexander v. Gould, 1 Mass. 165; Clarke v. Waite, 12 id. 439. There is, however, one adjudicated case in which “ the answer of a defendant was allowed as evidence in fa,vor of a co-defendant, where such co-defendant, being the depository of a chattel claimed by the plaintiffj defends himself under the title of the other defendant.” Mills v. Gore, 20 Pick. 28. But we know of no authority for the admission of such answer, Avhere its tendency [287] is to disprove the co-defendant’s title. The evidence, in our judgment, should have been rejected. Mryanf, McDonald and Roache, for the appellant. The remaining inquiry relates to the charge of the Court. That charge, so far as it assumes the position that the written contract given in evidence Avas not binding on the plaintiffs, seems to be incorrect. They Avere parties to the instrument, and, though they did not sign it, were evidently bound by its terms. But the substantial question involved in the instruction is, whether it was competeht for the plaintiffs to shoAV “by oral testimony that the writing did not embrace the entire contract between the parties.” Mr. Parsons says: “Where an agreement betAveen the parties is one and entire, and only a part of this is reduced to Avriting, the residue may be proved by extrinsic evidence.” 2 Parsons on Cont., p. G5. The rule thus stated is no doubt intended to apply where the Avritten contract on its face appears to be incomplete, and the proposed extrinsic evidence does not, in any degree, tend to contradict or vary the terms of such incomplete contract. Jeffery v. Walton, 1 Starkie, 127. Here, the contract, Avith one exception, appears on its face to be complete. It does not show Avhen the hogs sold Avere to be delivered to the buyer, and that, it seems to us, might have been shoAvn by oral testimony. But the charge in question is too general in its terms; it fails to point out Avhat might be proved consistent with the Avriting, in order that the contract might stand complete before the jury. It was plainly not enough to say, generally, that the plaintiffs Avere not precluded from shoAving that the “Avriting did not embrace the entire contractbecause such a direction to the jury might lead them to base their verdict on oral testimony in conflict Avith the terms and effect of the Avriting. We are of the opinion that the instruction is erroneous. Pt-r Curiam. — The judgment is reversed, Avith costs. Cause remanded, &c.