Cunningham v. Stoner

• Citation: 79 P. 228,10 Idaho 549
• Parties: CUNNINGHAM v. STONER
• Decision Date: 23 January 1904
• Court: United States State Supreme Court of Idaho

79 P. 228

10 Idaho 549

CUNNINGHAM v. STONER

Supreme Court of Idaho

January 23, 1904

APPEAL-INSUFFICIENCY OF EVIDENCE-FINDINGS-JUDGMENT-CLAIM AND DELIVERY-DECEASED PERSON-CLAIM AGAINST-PLAINTIFF AS A WITNESS-DAMAGES-MEASURE OF.

1. Under the provisions of section 4807, Revised Statutes unless an appeal is taken within sixty days after the entry of judgment, this court is precluded from reviewing the evidence to ascertain whether it is sufficient to support the findings or judgment.

2. In an action in claim and delivery the main issue is the right to the possession of the personal property in dispute.

3. As this is not an action prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person, the plaintiff is not precluded from testifying as a witness in his own behalf under the provisions of subdivision 3, section 5957, Revised Statutes.

4. The measure of damages in this case, if the respondent finally recovers the sheep and their increase, or their value, and the value of the wool shorn from the sheep, is that the appellant would be entitled, as an offset thereto, to the reasonable cost of shearing the sheep while they were in his possession and marketing the wool; but would not be entitled to the cost of keeping the sheep except from the date of the judgment of the court below until the termination of the retrial of the case after this decision.

(Syllabus by the court.)

APPEAL from District Court of Bingham County. Honorable James M Stevens, Judge.

Action in claim and delivery to recover a band of sheep. Judgment for defendants. Reversed.

Reversed and remanded, with instructions. Costs of appeal awarded to the appellant.

J. L Rawlins, for Appellant.

There is no conflict of evidence in this case and the evidence, without contradiction, establishes the following facts: On January 29, 1896, plaintiff being the owner, by purchase, of a flock of three thousand ewes, one or two years old, leased them to James H. Day, until October 1, 1897, to be returned at that time, any losses to be made good out of the average of the lambs of said ewes. The lessee, or bailee, was also to pay for the use of said sheep, nine lambs on the one hundred, for each year, and one and one-half or two pounds of wool, per head. At the trial the following statement and admission were made: "Mr. Rawlins.--In the spring of 1899 the terms of the agreement between the plaintiff, James A. Cunningham, and James H. Day, deceased, as embodied in exhibit 'D' were modified by agreement of said parties to the extent that in lieu of the nine lambs and wool to be paid by James H. Day to the plaintiff for the use of said sheep for each year that said Day was to pay an annual cash rental for the use of said sheep in the sum of eighteen hundred dollars. Mr. Rogers.--We are prepared to accept counsel's statement of that fact as correct." Under the original lease as thus modified the sheep were held by Day until his death, about April 14, 1903, he paying the stipulated annual cash rental for their use, as hereinbefore stated. At the time the modified lease was made and went into effect the number of sheep to which the plaintiff was entitled was three thousand ewes, and at the rate of nine lambs on the one hundred for each of the years, 1896, 1897, 1898 and 1899. On October 1, 1897, the three thousand, plus lambs, five hundred and forty head, made the total to which plaintiff was entitled--three thousand five hundred and forty head of sheep. On October 1, 1898, plaintiff was entitled to three thousand five hundred and forty head, plus three hundred and nineteen, or the total of three thousand eight hundred and fifty-nine head. On October 1, 1899, plaintiff was entitled to three thousand eight hundred and fifty-nine head, plus three hundred and twenty-nine head, or the total of four thousand one hundred and eighty-eight head of sheep. Notwithstanding the foregoing were the facts, the court below, as a conclusion of fact and law, found that plaintiff was not the owner or entitled to the possession of the sheep, and that the same belonged to the estate of James H. Day and had been his property prior to his death. When and how did the sheep cease to be the property of the plaintiff and become the property of Day? Certainly, plaintiff was the owner of the flock of three thousand ewes. Day took these as bailee, agreeing to return the identical ewes, making good losses from the "average of the lambs of said ewes," and to pay for the use of said ewes at the rate of nine lambs per one hundred and one and one-half or two pounds of wool to the head each year. Some of the original ewes remained in the flock at the commencement of this action, and the rest of the flock consisted of their increase, except the bucks and the few Oregon sheep. "It is elementary that the owner of the dam, in the absence of any valid stipulation or arrangement to the contrary, owns her young from the moment of birth." (Leavitt v. Jones, 54 Vt. 423, 41 Am. Rep. 849, 851; Arkansas Valley Land Co. v. Mann, 130 U.S. 69, 78, 9 S.Ct. 458, 32 L.Ed. 854, 2 Cyc. of Law & Pr. 309-311.) The following cases, almost completely analogous to the case at bar, establish plaintiff's right of recovery: Turnbow v. Beckstead, 25 Utah 468, 71 P. 1062; Woodward v. Edmunds, 20 Utah 118, 57 P. 848; Robinson v. Haas, 40 Cal. 475; Bellows v. Denison, 9 N.H. 293; and see Solomon v. Franklin, 7 Idaho 316, 62 P. 1030. That the defendants Stoner and Post stand in no better position than Day is well established. The rule is stated succinctly in the following language: "Bailee cannot, in contravention of the purpose of bailment, sell, pledge, mortgage, exchange or give away the property or otherwise expressly or impliedly transfer it so as to give title even to one acting bona fide, and without notice of the bailee's status." (5 Cyc. of Law & Pr. 188; Bache v. Clarke, 13 L. R. A. 717, note.) The mortgages by Day to the Flato Commission Company did not come to the knowledge of the plaintiff until after Day's death. This act on the part of Day was inconsistent with the bailment, and the bailment was thereby terminated, giving plaintiff the right to the immediate possession of the sheep. (5 Cyc. of Law & Pr. 205, and authorities there cited.) The court erred in holding that plaintiff was incompetent to testify to any fact occurring before the death of James H. Day. This ruling was based upon the third subdivision, section 5957, Revised Statutes. It will be noted that plaintiff in this case was not a party or the assignor of a party in an action against an administrator, upon any claim or demand against an estate. The action by plaintiff was against the defendants, Stoner and Post, and was based solely upon a claim or demand made against these defendants. In respect to this claim the administrator of the estate of James H. Day was not a necessary party. Upon the issue thus presented no judgment could be rendered against the estate, or to charge a trust upon any property belonging to the estate. The admission in evidence of the declaration of Day, in the absence of the plaintiff, that he, Day, was the owner of the sheep, was manifest error. The declarations were made in Salt Lake City while the sheep were in Idaho or Wyoming. They did not accompany or tend to characterize any act of Day pertaining to the possession of the sheep. They constituted no part of the res gestae. They were not made in disparagement of Day's title or against his interest. They were self-serving declarations and clearly incompetent. (Starkie on Evidence, 65; 1 Rice on Evidence, 420, 421; Stephen's Digest, Evidence, art. 28; 1 Greenleaf on Evidence, 16th ed., secs. 110, 149, 152.) The ruling of the court excluding evidence on the part of the plaintiff of the expense incurred by him in caring for the sheep, and in respect to the wool, and in finding against plaintiff for the gross amount received for the wool cannot be sustained. If the sheep had remained in the possession of the defendants, these expenses would have devolved upon them. At least, plaintiff's claim to the possession of the sheep was in good faith, and defendants could recover nothing more than the value of the use of the sheep while they were in the possession of the plaintiff. Under this ruling plaintiff was clearly entitled to credit for the expense of keeping the sheep and of shearing and marketing the wool. (5 Wait's Actions and Defenses, 499; Allen v. Fox, 51 N.Y. 567, 10 Am. Rep. 641; Yandle v. Kingsbury, 17 Kan. 195, 22 Am. Rep. 282.)

F. S. Dietrich and L. R. Rogers, for Respondents.

The judgment appealed from was rendered October 30, 1903. The appeal was taken April 12, 1904, and was from the judgment alone. More than sixty days had elapsed from the rendering of the judgment before the appeal therefrom was taken. Therefore this court cannot review the evidence or the exceptions that the evidence does not support the findings. (Rev. Stats sec. 4807, subd. 1; Brady v. Linehan, 5 Idaho 732, 51 P. 761.) The above section of the Revised Statutes was borrowed from the Code of Civil Procedure of California (see Deering's Code, sec. 939), and has uniformly been construed by the supreme court of that state exactly as this court has construed the statute to mean. (Curran v. Kennedy, 89 Cal. 98, 26 P. 641; Handley v. Figg, 58 Cal. 578; Bettis v. Townsend, 61 Cal. 333; Dominguez v. Mascotti, 74 Cal. 269, 15 P. 773; Greenwood v. Adams, 80 Cal. 74, 21 P. 1134.) It is almost the universal doctrine in the code states, where the distinction between law and equity has been abolished, that an appellate court, even when the appeal is taken in time and the evidence is properly within the record, will not disturb the findings of the trial court where there is a...