Deasey v. Thurman

Citation1 Idaho 775
PartiesDennis Deasey, Appellant, v. W. L. Thurman, Respondent.
Decision Date01 September 1880
CourtUnited States State Supreme Court of Idaho

ADMISSIONS OF ASSIGNOR-PURCHASER IN GOOD FAITH.-The admissions or statements of the assignor of chattels, in derogation of his title thereto, made prior to his transfer of the same, cannot be introduced in evidence against the title of his assignee who purchased the same in good faith, without knowledge of such statements or admissions.

INSTRUCTIONS.-When the court instructs a jury upon what state of facts they must find a verdict for or against the party, the instructions should include all the facts in the controversy, material to the rights of the parties upon the claim of the plaintiff and the defense of the defendant.

APPEAL from the Second Judicial District, Ada County.

Brumback & Cahalan, for the Appellant. Huston & Gray, for the Respondent.

BUCK J.,

delivered the opinion.

MORGAN C. J., and PRICKETT, J., concurred.

This action was commenced in the court below for the recovery of certain personal property, to wit, a pack train consisting of thirty-seven animals and the necessary equipments. The pleadings were in the usual form in actions under the statute for the claim and delivery of personal property; the plaintiff claiming ownership and alleging wrongful detention by defendant, the defendant admitting possession and claiming ownership by purchase of Con. Haley & Company, a firm composed of Cornelius Haley and Timothy Deasy, and denying wrongful detention. The defendant also pleads specially an estoppel in pais against the plaintiff. The trial was with a jury and the verdict for the defendant. The plaintiff appeals from the judgment, and claims error by the court in the rejection of certain evidence, and in giving certain instructions to the jury objected to by plaintiff and in refusing certain instructions asked for by the plaintiff.

The evidence tends to show that, in A. D. 1869, the plaintiff owned the property in question, and at that time made a conditional transfer thereof to Con. Haley & Co. That pursuant to said transfer said company took possession of said property and exercised full control of the same continuously, and apparently as owner thereof, until the eighth day of July, A. D. 1877. That during all of said time the plaintiff was generally with said train, apparently as the employee of said Con. Healey & Co. That during said time the plaintiff publicly acknowledged the control and ownership of said property to be in said company; that he publicly made no claim to ownership in said property, and did no act indicating ownership in himself, except possibly certain equivocal and isolated acts which might indicate either ownership or servile employment on his part.

The evidence on the part of the defendant tends to show that on the eighth day of July, A. D. 1877, while said Con. Haley & Co. were in the possession and exercising full control and apparent ownership of said property, they sold it to the defendant with the full knowledge of the plaintiff, and that since said sale the defendant had retained possession thereof. The evidence tends to show also that during all the time of the pos-

session of said property by said Con. Haley & Co., the defendant privately claimed the ownership of said property, and that at the time of said transfer from Con. Haley & Co. to the defendant, said Timothy Deasey, in making said transfer, acted for said company and also as agent of plaintiff, and that at the time of said transfer the plaintiff knew of, and adopted as his own, the act of said Timothy Deasey in making said transfer.

During the trial the plaintiff offered in evidence the declarations of Con. Haley & Co. while in possession of said property, in derogation of their own title thereto, as against the defendant in this action. The defendants objected to this evidence, and the objection being sustained, the plaintiffs excepted to the ruling of the court, and claim that said ruling was error. The appellant now argues that said evidence was admissible: 1. As a part of the res gestae; and 2. As the declarations of the party under whom defendant claims while such party was in possession of the property.

To make such evidence admissible as a part of the res gestac, the conversation or admissions must have been concurrent with the contract of transfer, or in some way connected with it, and must have come to the knowledge of the assignee. (1 Greenl. Ev., sec. 110; Tevis v. Hicks, 41 Cal. 126; 2 Bouv. L. Dic. 464.) It does not appear that the admissions or statements were made at the time of the transfer, or that they were in any way connected, even remotely, with that transaction, or that they ever came to the knowledge of the defendant, and it seems to have been admitted on the argument of the case that the...

To continue reading

Request your trial
8 cases
  • Hackbarth v. Wilson Lumber Co.
    • United States
    • United States State Supreme Court of Idaho
    • February 12, 1923
    ...should include all the facts in the controversy material to the rights of the plaintiff or the defense of the defendant. (Deasey v. Thurman, 1 Idaho 775; Johnson v. 2 Idaho 404, 18 P. 48.) The mere fact that a corporation is organized to take over the business formerly conducted by a firm o......
  • Hansen v. Howard O. Miller, Inc.
    • United States
    • United States State Supreme Court of Idaho
    • October 27, 1969
    ...in the controversy material to the rights of the parties upon the claim of the plaintiff or the defense of the defendant. Deasey v. Thurman, 1 Idaho 775 (1880); Johnson v. Fraser, 2 Idaho 404, 18 P. 48 (1888). It is true that repetition of one view of the case in an instruction to the jury ......
  • Tannahill v. Lydon
    • United States
    • United States State Supreme Court of Idaho
    • July 23, 1918
    ...82 Cal. 250, 251, 23 P. 127; Gallagher v. Williamson, 23 Cal. 331, 83 Am. Dec. 114; Venine v. Archibald, 3 Colo. 163, 169; Deasey v. Thurman, 1 Idaho 775, 779; Barker State, 48 Ind. 163, 167. Cited to the point stated, in 90 Am. Dec. 390, and 97 Am. Dec. 499, note.) The judgment in claim an......
  • White Co. v. Means
    • United States
    • United States State Supreme Court of Idaho
    • October 30, 1915
    ...should include all the facts in the controversy material to the rights of the plaintiff or the defense of the defendant." (Deasey v. Thurman, 1 Idaho 775; Johnson Fraser, 2 Idaho 404 (371), 18 P. 48; Gallagher v. Williamson, 23 Cal. 331, 83 Am. Dec. 114; 38 Cyc. 1629, and cases cited.) Inst......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT