Belknap v. Belknap

• Citation: 107 N.W. 692,20 S.D. 482
• Parties: JAMES BELKNAP, Plaintiff and appellant, v. CHARLES V. BELKNAP, Defendant and respondent.
• Decision Date: 03 April 1906
• Court: Supreme Court of South Dakota

20 S.D. 482

107 N.W. 692

JAMES BELKNAP, Plaintiff and appellant, v. CHARLES V. BELKNAP,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. Levi McGee, Judge.

Affirmed

Chauncey L. Wood

Attorneys for appellant.

Buell & Gardner

Attorneys for respondent.

Opinion filed, April 3, 1906

CORSON, J.

This was an action in claim and delivery to recover possession of certain horses from the defendant, three of which were branded. “J. K.” on the left thigh, and one brown yearling not branded, all of the alleged value of $100, and for $25 damages for the detention of the same. The defendant by his answer denied all the allegations of the complaint not thereinafter admitted, admits that the horses described in the complaint were of he value of $100, and alleges that the said horses were the property of the defendant. The only question, therefore, presented in the case was as to the ownership of the property and the amount of damages sustained by the plaintiff.

Plaintiff, to prove his ownership of the property, relied upon the evidence that three of the animals were branded with his brand, “J. K.” on the left thigh, and that the younger one was the offspring of one of the mares so branded. It is disclosed by the evidence that the plaintiff and defendant both used a similar brand prior to July, 1900, but that the plaintiff usually branded the horses owned by him on the left shoulder, and the defendant branded his on the left thigh, and that three of the plaintiff’s horses had been branded on the left thigh prior to 1900. Some dispute having arisen between the parties in regard to the ownership of the horses then upon the range, the defendant had his brand accepted by the board of brand commissioners of the state and had it recorded, and that subsequently the defendant sold his brand to the plaintiff, and it was claimed by the plaintiff that an agreement was entered into by the defendant by which all horses branded with that brand should be regarded as the property of the plaintiff, and that no horses found upon the range thereafter with that brand should be claimed or taken by the defendant, except with the consent of the plaintiff.

It was claimed on the part of the defendant, however, that, when he Sold his brand to the plaintiff, it was stipulated and agreed between them that he reserved the right to any horses belonging to him found upon the range subsequently to such sale branded with said brand. The evidence as to what this contract really was was conflicting, and it therefore became the duty of the jury to determine what the contract really was between the parties. The only evidence offered by the plaintiff of his ownership of the property was the brand on the horses. The defendant sought to prove that the property belonged to him by proving that the older animal, a mare, belonged to him at the time he transferred the brand to the plaintiff, and that the younger animals were offspring of that mare, and one of the methods by which he sought to prove that fact was by showing that the mare was nine years of age or over, while he had transferred his brand to the plaintiff only five years prior to the trial.

It is contended by the appellant that under the Code of this state animals branded with the “J. K.” brand on the left thigh belonged prima facie to the owner of that brand, and that when the plaintiff proved by uncontradicted evidence that the animals that he sought to recover from the defendant were branded with his brand, “J. K.” on the left hip, he was entitled to recover the property unless the defendant could overcome that prima facie evidence by a preponderance of proof showing that the property actually belonged to him, and that the plaintiff had assented to such ownership, and that the evidence was insufficient to overcome the prima facie case. But the jury, who were the exclusive judges of the weight of the evidence and the credibility of the witnesses, has evidently found the evidence sufficient to overcome the prima facie case made by the plaintiff, and we are not inclined to disturb their verdict. It is somewhat difficult to lay down a rule as to the amount of evidence on the part of the defendant necessary to overcome the plaintiff’s prima facie case. Undoubtedly it must preponderate in favor of defendant, but whether or not it does so preponderate is properly a question for the jury under proper instruction by the court. It is quite clear that the horses actually belonging to the defendant at the time of the transfer by him of his brand to the plaintiff were to remain his, and under the contract he would be entitled to claim such animals as his own notwithstanding some expressions used by the parties in making the contract. The evident purpose and intention of the contract was that subsequently to the transfer of the brand to the plaintiff defendant should not have the right to claim to be the owner of horses subsequently branded, but that he should retain the right, of ownership to the horses previously branded by him. The jury evidently took this view of the contract or agreement, entered into between the parties, and we think they were right in so doing.

It is also contended by the appellant that the court erred in...