Cuerth v. Arbogast

• Decision Date: 07 November 1913
• Citation: 136 P. 383,48 Mont. 209
• Parties: CUERTH ET AL. v. ARBOGAST.
• Court: Montana Supreme Court

136 P. 383

48 Mont. 209

CUERTH ET AL. v. ARBOGAST.

Supreme Court of Montana

November 7, 1913

Appeal from District Court, Choteau County; Jno. W. Tattan, Judge.

Action by Henry Cuerth and others against John Arbogast. From a judgment for plaintiffs, and an order denying a new trial defendant appeals. Reversed and remanded.

John Collins, of Harlem, and Stranahan & Stranahan, of Ft. Benton for appellant.

W. S Towner, of Great Falls, for respondents.

HOLLOWAY J.

Action in claim and delivery to recover certain cattle or their value. Defendant appealed from an adverse judgment, and from an order denying him a new trial. The plaintiffs claim that they owned the cattle in dispute, and let them to one John D. Busch under an agreement which amounted to a bailment, with an option to Busch to purchase. The defendant alleges that he purchased the cattle from Busch while he was in possession of them, and for their fair value, without notice of any outstanding claim.

1. Plaintiff Henry Cuerth testified that Busch came to him a stranger, and that, upon the security of $300 left with him, he permitted Busch to take 50 head of cattle, valued at $1,400, 40 or 50 miles away under an agreement to keep them for three months, and to purchase them if Busch had the money to make payment. Upon cross-examination he was asked if he made any investigation as to Busch's standing or character. This was excluded as not proper cross-examination, and incompetent, and immaterial. The witness had given his version of his transaction with Busch. Whether it amounted to an absolute sale, a conditional sale, an agreement to sell, or a mere bailment with an option to purchase, depended upon the truth of Cuerth's statements. It was a vital question, and any evidence, otherwise proper, which would reflect upon the probability of the story should have been received. The jury might have concluded properly that, if Cuerth did not make any inquiry into Busch's liability, it was because he then treated the transaction as a sale. In any event, the inquiry was proper, and the ruling erroneous.

2. Mrs. Cuerth, who claims to be interested in these cattle, testified on her direct examination to the negotiations between her husband and Busch, and that a sale to Busch was not made. On cross-examination the details of the transaction were sought; but practically every effort on the part of counsel for defendant to ascertain the facts was met by an objection that it was not cross-examination, and these objections were sustained. In fact, the rulings amounted practically to a denial of the right to cross-examine the witness. While it is the general rule that cross-examination must be confined to the material matters brought out on direct examination or connected therewith (section 8021, Rev. Codes; Pelican v. Mutual Life Ins. Co., 44 Mont. 277, 119 P. 778; Borden v. Lynch, 34 Mont. 503, 87 P. 609), and that mere excursions into matters foreign to the subject considered on direct examination will not be permitted, still the section above is to be liberally construed, and the general rule extended, rather than restricted (Cobban v. Hecklen, 27 Mont. 245, 70 P. 805; Hefferlin v. Karlman, 30 Mont. 348, 76 P. 757; Knuckey v. Butte Electric Ry. Co., 45 Mont. 106, 122 P. 280). The declaration of this court upon the subject was tersely made in Kipp v. Silverman, 25 Mont. 296, 64 P. 884, as follows: "Section 3376, Code of Civil Procedure (8021, Rev. Codes), permits a wide range for cross-examination, and the courts should incline to extend, rather than to restrict, the right. Properly understood, the right extends, not only to all facts stated by the witness in his original examination, but to all other facts connected with them, whether directly or indirectly, which tend to enlighten the jury upon the question in controversy." In State v. Biggs, 45 Mont. 400, 123 P. 410, this was repeated, and in addition thereto we said: "The rule necessarily includes questions, the purpose of which is to bring out facts illustrative of the motives, bias, and interest of the witness, or as reflecting upon his capacity and memory. The right would be of little value if inquiry into these matters were not permitted."

3. Defendant offered in evidence the checks which he had given for these cattle when he purchased them from Busch; but upon objection they were excluded, and erroneously so. In an attempted defense of the rulings, counsel for plaintiffs contends that, by failing to reply to the affirmative matter set forth in the answer, the purchase from and the payment to Busch were admitted; but with this we do not agree. The so-called affirmative matter amounted only to an argumentative denial of plaintiffs' title, and everything which could be proved under it could likewise be proved under a general denial. Kaufman v. Cooper, 38 Mont. 6, 98 P. 504, 1135; Hickey v. Breen, 40 Mont. 368, 106 P. 881, 20 Ann. Cas. 429. Defendant was entitled to show that he purchased the animals from Busch, and to offer the best evidence he had of that fact.

4. The trial court erred also in excluding defendant's offer in evidence of the note given by Busch to Fruchtbar, and a chattel mortgage upon these same cattle to secure the debt evidenced by that note. The mortgage was duly filed for record in Choteau county, the home of these plaintiffs, on June 23d, within two weeks at most from the day upon which they had given the cattle into Busch's possession, and remained of record uncanceled on July 30th, when the defendant alleges that he purchased the cattle from Busch, who was then in possession of them. The evidence was competent for the purpose of re-enforcing the presumptions which the Codes declare: "8. That a thing delivered by one to another belonged to the latter. * * * 11. That things which a person possesses are owned by him. 12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership." Rev. Codes, § 7962.

5. At the time these transactions between plaintiffs and Busch and between Busch and the defendant occurred, section 5092, Revised Codes, was in force, as follows: "All contracts, notes and instruments for the transfer or sale of personal property where the title is stipulated to remain in the vendor until the payment of the purchase price, or some part thereof, shall be in writing, and the original or a true copy thereof certified by the county clerk and recorder shall be filed with the county clerk and recorder of the county wherein the property is situate, otherwise any such contract, note or instrument is void as to a purchaser or mortgagee of such property prior to such filing." The trial court should have defined an agreement to sell, and should have instructed the jury that, if they found that the transaction between plaintiffs and Busch amounted to such an agreement, and further found that defendant purchased the property from Busch while in his possession, then their verdict should be for the defendant, for it is uncontroverted in the evidence that there was not any contract reduced to writing, or any contract filed as required by section 5092 above.

6. The trial court instructed the jury "that a brand duly recorded with the recorder of marks and brands of this state is prima facie evidence of the ownership of an animal bearing such brand; in other words, that the owner of a duly recorded mark or brand is prima facie the owner of an animal bearing such brand." Counsel for respondents contends that the instruction is justified by the rules of the common law, as well as by sections 1791 and 1793, Revised Codes, and cites Queen v. Forsythe, 2 N.W. Terr. 398, 4 Territories L. R. 398, wherein it was held, by a divided court, that proof that an animal bore John Lawrence's mark and brand that it was a steer three years old, and that Lawrence had not sold or otherwise disposed of locally any steers, was sufficient proof of ownership to sustain a conviction for larceny. Nothing whatever is said by the court of any rule of the common law, and no authority whatever is cited for the holding; but much emphasis is laid upon the fact that identification of cattle by brands is a common custom in that territory. Upon a somewhat similar state of facts the like conclusion was reached by the Supreme Court of Oklahoma, in Hurst v. Territory, 16 Okl. 600, 86 P. 280, and in State v. Cardelli, 19 Nev. 319, 10 P. 433; but in neither of these last two cases is there any mention made of a rule of the common law, and in neither is it asserted that a brand, or the record of a brand, is prima facie evidence of the ownership of the animal which bears the brand. We are satisfied that authority for the trial court's action based upon a rule of the common law cannot be found, and that such rule was never enforced except by virtue of some statute which...