Baldwin v. Wentworth

• Decision Date: 17 March 1893
• Citation: 67 N.H. 408,36 A. 365
• Parties: BALDWIN v. WENTWORTH.
• Court: New Hampshire Supreme Court

36 A. 365

67 N.H. 408

BALDWIN

v. WENTWORTH.

Supreme Court of New Hampshire. Coos.

March 17, 1893.

Trover by Justus W. Baldwin against Wesley Wentworth for a yoke of oxen and other cattle. Plea, the general issue, with a statement that the defendant, a deputy sheriff, took the cattle August 16, 1889, on a writ against Daniel Day, and that they were Day's property. Verdict for the plaintiff. Defendant excepts. Exceptions overruled.

The plaintiff, who was the first witness called, testified that in May, 1889, he sold the oxen to one Sanborn for $90, and that the defendant took them from Sanborn's possession. No question respecting the sale was put to him on cross-examination, and no allusion to this testimony was made by either party (except on the question of the value of the oxen) until the jury were instructed and about to retire, when the defendant objected that on the evidence the plaintiff could not recover for the oxen, and requested the court so to instruct the jury. The court declined, and the defendant excepted. On cross-examination, the plaintiff testified that for six or eight years prior to the seizure of the cattle Day lived on the plaintiff's farm, under an agreement for a conveyance on the payment of a stipulated price; that Day had not paid, and that he had, three or four months after the seizure of the cattle, been expelled from the possession by legal process; that in 1885 or 1880 the plaintiff bought and paid for the cattle, put them on the farm, and agreed with Day to allow him their growth or increase in value, in case he paid for the farm; and that Day had no other interest in them. The court (remarking that possibly the evidence might be competent at a later stage) refused to permit the defendant then to inquire of the plaintiff into the source of his title to the farm, and into his dealings with Day in respect to it, and the defendant excepted.

J. H. Dudley and T. F. Johnson, for plaintiff.

J. I. Parsons and Drew & Jordan, for defendant.

BLODGETT, J. The request came too late. If it had been made seasonably, the plaintiff would have had an opportunity to obviate the objection as to his title by further evidence, and doubtless would have done so. But, however this may be, the defendant could not lie by until after the evidence, arguments, and charge to the jury were closed, and then first avail himself of an objection that was open to him, and which in fairness he ought to have taken, as soon as the evidence for the...