Kocher v. Palmetier

Given, J. I. Each party claims the right to the possession of the cattle in controversy by virtue of absolute ownership, and the controlling question is as to which party is the owner. Plaintiff’s claim of ownership is based upon evidence tending to show that she furnished the money with which the four cows described were purchased, that it was agreed between her and her husband that said cows and their increase should be her property, and that the cattle described are of the increase from, said cows. The defendant’s claim rests upon evidence tending to show that plaintiff’s husband, Thomas Kocher, occupied a farm of the defendant’s as his tenant for four years, the plaintiff residing thereon with her husband; that the four cows, when purchased, were taken onto said farm, and their increase were raised thereon; that by reason of said tenancy Thomas Kocher became indebted to the defendant for rent, and in payment thereof, on February 7, 1898, executed to the defendant an absolute bill of sale of said cattle and certain other personal property then on said farm. There is a controversy as to whether the defendant had notice of plaintiff’s claim to the cattle when he took said bill of sale. 1 II. During the examination of Thomas Kocher, called by the plaintiff, plaintiff was permitted to amend her reply, alleging fraud on the part of the defendant in procuring said bill of sale. Of this, defendant complains, eontending’ that it presented a new issue, and that he was taken by surprise, and was not allowed time within which to prepare to meet said new issue. The defendant did not ask for time, and it is evident that none was needed, as the fraud alleged was in procuring the bill of sale, and all of the persons present at the execution of the bill of sale were in attendance and examined as witnesses on the trial. [87] 2 3 [86] III. Complaint is made that the instructions “are disconnected, incoherent, not a statement of the law, [87] .and bungling to a painful degree.” The instructions do not warrant any such criticism. It is specifically complained that in the seventh instruction the court told the jury that, if plaintiff’s husband purchased the two cows from Palmetier that were purchased from him, said cows and their increase would be the husband’s property, unless they found that the plaintiff afterwards purchased the cows from her husband, and that notice of her claim was given to Mr. Moody. The complaint is that there was no evidence that Mr. Moody was agent of Palmetier. But not so. There was evidence upon which the jury was warranted in finding that Moody was such agent. In the sixth instruction the jury was told that, if plaintiff purchased the other two cows from Mr. Marple, the cows and their increase would be her property. It is contended that the evidence shows, without conflict, that Mr. Kocher purchased the cows from Marple, and therefore the instruction was erroneous. .There is some conflict in the evidence as to who purchased the cows, and the instructions properly submitted that question to the jury. We discover no error in the instructions in any of the respects complained of. 4 . IV. Defendant moved to strike all the evidence tending to show a sale of these cows, or a part of them, by Mr. Kocher to the plaintiff, “for the reason the pretended sale was not made in writing signed and acknowledged by Thomas Kocher, and recorded, as required by law, so as to impart constructive notice to the defendant, and there being no claim that defendant had actual notice of plaintiff’s claim of ownership until after the sale was made to him.” The evidence tends to show that Mr. Kocher: purchased the two cows from Palmetier, and that the plaintiff furnished the money to pay for them upon an agreement with her husband that she should stand as the purchaser and absolute owner. It is claimed, and, as we have seen, there is evidence tending to support the claim, that defendant did [88] liave actual notice. We do not think, under the record, that there was any error in overruling this motion. V. Appellant next urges that the court erred in not granting a new trial because the verdict is not supported by the evidence. Possibly, if it were our province to pass upon the facts, we might reach a different conclusion from that arrived at by the jury; but the issues having been submitted under proper instructions, and the jury having found as it did, we are not warranted in disturbing its verdict as not being supported by the evidence. 5 VI. It is urged that defendant’s motion in arrest of judgment should have been sustained, because the petition is not definite and specific enough in describing the property. The defendant made no such question in his answer, but admitted the identity of the property, that it was of the value of $305, and that he was in possession thereof and claimed title thereto. We think the petition was sufficiently specific in its description of the cattle, but, if not, the defendant should not now be heard to raise that question, in view of his answer. 6 VII. Plaintiff claimed to have borrowed the money from friends in Illinois with which to purchase the cows, and in support of that claim offered in evidence certain letters received from said parties, showing that they had sent her money as requested. It is urged that the . proper foundation had not been laid for the introduction of these letters, and that they were immaterial. We do not so view the record, and think they were properly admitted. 7 VIII. Appellant ■ contends that the court erred in receiving the verdict in the form in which it was. Attached to the verdict, which was in proper form, was a paper signed by the foreman enumerating the value of the five calves, four steers, one red and one black heifer, two red and two black cows. In the verdict proper the [89] same valuations are given; tlio only difference being that, in tbe sheet attached, each of the heifers is valued at $20, while in the verdict the two are valued at $40, In the sheet attached the two red cows are valued at $60 and the two black cows at $60, while in the verdict the four are valued at $120. There can be no doubt whatever as to what the jury intended by its verdict, and therefore there was no error in receiving it. 8 IX. Defendant contends that plaintiff was estopped from claiming the property because she permitted her husband to mortgage it in his own name, and to list it for taxation in his own name, and never told the defendant of her ownership until after he had purchased the property. It is a familiar rule that matters in estoppel must be specifically pleaded. The only estoppel pleaded by the defendant is as to the four steers, for the reason that plaintiff consented to the sale thereof to one Kipkc, who purchased the same from the defendant. The burden was on Hie defendant to sustain this plea, but he failed to offer any evidence whatever in support thereof. 9 X. Finally, it is contended by defendant that the plaintiff failed to prove the allegations of her petition and reply before she rested her case. Her right to recover docs not necessarily depend upon her proving the allegalion of fraud in her reply. If she was the owner of the cattle, and the defendant purchased from her husband with notice of her ownership, plaintiff is entitled to recover, even though the bill of sale was not fraudulently procured. We think this last contention is not well taken, and our conclusion is, upon the whole record, that the judgment of the district court should be aeeirmed. Granger, O. J., not sitting.