Shaper v. Russell

RITCHIE, District Judge, after stating the facts as above, delivered the opinion of the court. The first error complained of is that an objection was sustained to the question: “What instructions did you give Mr. Bell with respect to putting Mrs. Loomis in possession 1 ’ ’ This question was asked on redirect examination of the plaintiff as a witness in her own behalf. 1, 2 It is always within the discretion of the court to refuse to admit new evidence on redirect examination, and the exercise of such discretion will not be reviewed except when an abuse of discretion is alleged. No such allegation is made. The plaintiff had already testified that she had told Mr. Bell, in the presence of Mrs. Loomis, not to give her title or possession 3 of the property in question until the money was paid. So it will be a proper exercise of discretion to refuse to permit her to testify to the same facts on redirect examination. The second error complained of is the refusal of the court to strike out the testimony of the witness Bell concerning his effort to get Mrs. Loomis to sign a chattel mortgage to Mrs. Shafer for $550. The question calling forth this statement was asked on cross-examination, and it was competent, in view of other facts in evidence, to be considered in determining the weight to be given to the testimony of the witness. The third error assigned relates to the matter of damages found by the jury for the taking and detention of the property. We do not think the evidence sustains the finding in the verdict in that regard. [452] Another question arises which must necessarily he determined in order to direct whether or not further proceedings are necessary to dispose of the question of damages. It is claimed by the appellant that nothing can be recovered by the respondent by way of damages for the taking and detention of the property, because there is no pleading upon which to found such a recovery. If this is correct, the judgment of the district court in that regard must be reversed, and that will be the end of the matter. If the answer affords ground for such recovery, the evidence being insufficient to sustain the finding, the case, as to this question, must be 4 reversed and sent back for a new trial on this issue alone. Section 3165, Rev. St. 1898, provides, in this class of cases, that the jury, in their verdict “may at 'the same time assess the damages if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property.” The answer in this case does not allege any damage that the defendant may have suffered,’ nor state the amount of such damage. It is entirely silent on the subject of damages, except that the prayer asks for the return of the goods, with damages for their taking and detention. It might seem that this was a sufficient compliance with the statutory provision above referred to, and might be deemed to be “ claiming damages, ’ ’ but a clause in the prayer of a pleading which is itself not a statement of fact cannot be considered any part of the statement of a cause of action. A pleading, or a portion of a pleading, to be a foundation for affirmative relief, must contain “a statement of the facts constituting the cause of action,” or, if in an answer, constituting the ground of the relief asked for. Rev. Stat. 1898, secs. 2960, 2968. We do not think that section 3165, above referred to, intends to vary the general rules of pleading in this regard. It evidently means that, when a party claiming the possession of personal property desires at the same time to claim in his complaint or answer damages [453] sustained by reason of the taking or detention of such property, he must set up such claim by a statement of the facts, and not by a mere clause in the prayer, such as the answer in this case contained. The fourth error assigned is the giving of the fourth instruction to the jury, which contains the following statement: “It appears from the evidence that plaintiff made a sale to Mrs. F. C. Loomis and son of the greater part of the goods in controversy, and delivered 5 same to them.” We think the contention of the respondent that it was proper for the court to assume the existence of admitted facts is sound. There can be no doubt that a sale was made and the goods delivered — questions being raised by assignments of error as to the nature and conditions of the sale — and there was no error in the court assuming what unquestionably appears from the evidence. We do not perceive any inconsistency between this instruction and the fifth. The fifth assignment complains of an instruction to the effect that if a person adopts a transaction in his behalf 6 made by an agent, even though the agent may have exceeded his authority in making it, he must adopt it in its entirety; he cannot adopt a part which is beneficial, and repudiate the rest. We think this is a correct view of the law, and that the following statement in the instruction is a correct application of the rule to the facts in the case, to-wit: “If you believe that Mrs. Shafer accepted the property and money paid to Bell by Mrs. Loomis, then you must find, as a matter of law, that the acts of Bell in naming terms of sale to Mrs. Loomis, and the delivering of the property to her, if you find that Bell did name terms of sale to Mrs. Loomis and deliver the property to her, are the acts of Mrs. Shafer, and she is bound by .them.” The sixth error complained of is the refusal to give plaintiff’s request No. 1, which reads as followsj “The court instructs the jury that, if you find from- the [454] evidence that Mrs. Loomis was dealing with the agent of the plaintiff, she so dealt at her peril, and she must 7 observe that the act done by the agent is legally identical with the act authorized by the power; and one who deals with the agent is put upon inquiry as to the extent of the agent’s authority, and, where the agency is a special one and temporary, the authority must be strictly pursued, and the principal is not bound if the agent exceeds his authority. A special agency is one that authorizes an agent to perform a particular transaction, as distinguished from an agency wherein the agent is empowered to perform the general business of his principal.” This request was properly refused, because, if given, it would have excluded from the consideration of the jury the effect of matters alleged by the respondent to constitute a ratification by Mrs. Shafer of the acts of Bell in making the contract with Mrs. Loomis. The seventh error relied upon is the refusal to give plaintiff’s fifth request for an instruction to the jury which reads as follows: “The court instructs the jury 8 that, where the chattels are sold to a vendee on condition that the title to said property is not to pass to the vendee until the purchase price is fully paid, that all payments made, whether in property or money, prior to the default of the vendee, become forfeited to the vendor.” We do not think this is a correct statement of the law, and the court properly refused to give it. The next matter complained of is that the motion for a new trial was erroneously overruled, because the newly discovered evidence entitled the plaintiff to a new trial. The application on this ground is insufficient. Klopenstine v. Hays, 20 Utah 45, 57 Pac. 712; Larsen v. Onesite, 21 Utah 38, 59 Pac. 234. The other assignments of error are insufficient to warrant setting aside the judgment of the trial court. They do not require separate discussion, as they are all [455] covered by the discussion of matters which, have been already considered. The judgment, modified by striking out the item of $200 for the taking and detention of the property, will be affirmed, and the district court will be. directed to enter judgment for the sum of $1,750, with interest from that date, with costs, and for no more. BARTCH, C. J., and McCARTY, J., concur.