Comeau v. Hurley

• Decision Date: 22 July 1908
• Parties: GEORGE COMEAU, Plaintiff and respondent, v. SOLON P. HURLEY et al., Defendants and appellants.
• Court: South Dakota Supreme Court

22 S.D. 310

117 N.W. 371

GEORGE COMEAU, Plaintiff and respondent, v. SOLON P. HURLEY et al.,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Potter County, SD

Hon. Loring E. Gaffy, Judge

Affirmed

D. J. O’Keefe, Henderson & Fribourg

Attorneys for appellants.

S. M. Howard, A, J. Brower, J. H. Bottum

Attorneys for respondent.

Opinion filed July 22, 1908

FULLER, J.

At the trial of the issues presented by the pleadings in this action the jury found and the court adjudged respondent to be the owner of 5 cows, 3 steers, and 2 heifers of the value of $252, all of which were seized and sold with certain cattle and horses, belonging to his brother, Walter Comeau, in satisfaction of an execution issued against the property of their father, M. A. Comeau. The evidence tending to prove the ownership of respondent and the wrongful conversion of his property, as well as the questions of law presented on this appeal, are so similar to the recent case of Walter Comeau versus these appellants, reported in 22 SD 79, 115 NW 521, that counsel for appellant direct our attention to, and request us to consider the printed abstract and briefs filed on that appeal. Here, as in the action of his brother Walter against these appellants, the evidence is to the effect that respondent and several brothers resided with their mother upon, and had exclusive management of, a government homestead owned by their father, whose business as a contractor and builder had kept him from home during the last 11 years almost constantly; his visits there being at intervals of about three months, and of but three or four days’ duration. With the knowledge and approval of both parents, the boys of the family, including this respondent, have acted for themselves from childhood in all business transactions, and have collected their earnings and invested the same without parental interference. The testimony in both cases, so far as material, is practically the same, and tends to show that the cattle were bought by the brothers through the agency of their father, who on account of their minority signed a chattel mortgage executed thereon to secure the entire purchase price which the boys have been paying conformable to the family agreement entered into before any of such property was obtained, and the facts and circumstances are reasonably sufficient to justify the jury in finding the essential issue of ownership favorable to respondent and against both appellants.

Respondent was permitted to testify as to certain conversations occurring many years ago between the father and his sons, including this respondent, with reference to their working the farm, managing the business, and purchasing the cattle through him, but on their account; and the objection that such conversation was inadmissible because the same did not take piece in the presence of appellants was very properly overruled. It was alleged in the complaint that respondent is the owner of the cattle so converted...