Davis v. Blume

• Decision Date: 31 August 1872
• Parties: DAVIS, appellant, v. BLUME et al., respondents.
• Court: Montana Supreme Court

1 Mont. 463

DAVIS, appellant,

v.BLUME et al., respondents.

Supreme Court of the Territory of Montana.

August Term, 1872.

Appeal from the Third District, Lewis and Clarke County.

THIS cause was tried in February, 1872, by a jury, that returned a verdict for Blume. WADE, J., overruled the motion for a new trial, and Davis appealed. The letter of December 6, 1870, referred to in the opinion, informed Boley, the sheriff, that Davis had advised Watson & Bro. of the levy, by the said Boley, on the mules in controversy, as the property of Sample; that Watson & Bro. were the owners of one span of the mules attached by him; that they had leased the same to Blume for $1 per month, and that Watson & Bro. had a bill of sale of said mules from Blume.

The other facts are stated in the opinion.

CHUMASERO & CHADWICK, for appellant.

The court erred in excluding the letter of Watson & Bro. to Boley. It was material and competent evidence. It showed that respondents had no authority to trade off the mules, and that Watson & Bro. had refused to ratify the trade made by respondents. The letter was properly identified. 1 Phil. on Ev. 184, 185.

The verdict of the jury is clearly against the evidence. The testimony showed that the trade between Sample and respondents was a conditional sale, which appellant and Watson & Bro. had refused to ratify. The jury found that the trade was an unconditional sale.

SHOBER & LOWRY and G. G. SYMES, for respondents.

The trade between Sample and respondents was unconditional. Respondents satisfied the mortgage of Watson & Bro. on one span of the mules. One party cannot rescind a contract, unless both can be restored to the condition in which they were before the contract was made. 2 Pars. on Cont. 679, 680, 780. Appellant could not claim the cattle without returning the mules. Hunt v. Silk, 5 East. 249.

The letter of Watson & Bro. was hearsay evidence, and inadmissible. 1 Greenl. on Ev., § 99. The letter was not between the parties to the action, and could have no weight if admitted.

The case was fairly presented by the instructions given at the instance of appellant. The verdict was authorized by the evidence. If there was a conflict of evidence, the verdict will not be disturbed. Ming v. Truett, Jan. T., 1871; Kimball v. Gearhart, 12 Cal. 27.

WADE, J.

This was an action of replevin, brought by plaintiff, to recover the possession of twelve head of cattle from the defendant.

The testimony shows that the defendant became possessed of the cattle by virtue of having traded for them four mules, with one Sample, an agent of the plaintiff. It seems that Watson & Bro., of Helena, were the owners of a certain mortgage upon two of the mules, and the plaintiff claimed that the sale was not an absolute but a conditional sale, depending for its ratification upon the consent of Watson & Bro., and upon the plaintiff, the trade having been made in his behalf, by his agent, Sample. The trial resulted in a verdict for defendant. Motion for a new trial was made and overruled, and this action of the court is one of the errors complained of.

We have frequently decided that this court cannot disturb the verdict of a...