Gallagher v. Holland

• Decision Date: 14 July 1888
• Docket Number: 1,282.
• Citation: 18 P. 834,20 Nev. 164
• Parties: GALLAGHER v. HOLLAND.
• Court: Nevada Supreme Court

18 P. 834

20 Nev. 164

GALLAGHER v. HOLLAND.

No. 1,282.

Supreme Court of Nevada

July 14, 1888

Appeal from district court, Lyon county.

Action by Gallagher, administrator of James Merritt, against Holland. Judgment for plaintiff, and defendant appeals. Gen St. Nev. § 2739, provides that, "before letters testamentary or of administration shall be issued to the executor or administrator, he shall take and subscribe an oath or affirmation, before the probate judge or clerk, that he will perform, according to law, the duties of executor or administrator."

W. E F. Deal, for appellant.

T Coffin, for respondent.

HAWLEY J.

James Merritt, in his life-time, leased appellant certain lands and personal property. One of the questions at issue in this case depends upon the construction of the following clause in the lease: "And it is agreed that the party of the second part is to have the privilege to sell any of the said horses and replace the same with horses out of his share of the increase of said horses." During the pendency of this lease, appellant traded three horses for a jack, and sold three others, making six in all. At the termination of the lease, respondent and appellant met, by agreement, and endeavored to make a division of the property under the terms of the lease. Appellant offered to replace the six horses which he had sold with six mules, the issue from mares belonging to the estate. Respondent refused to accept the mules, because they were not of equal value with the horses that had been sold; but agreed to accept them conditionally, with the understanding that the facts should be submitted to the district judge, and that his ruling thereon should govern the parties. There is a conflict in the testimony as to whether appellant consented, at that time, to submit the matter to the district judge, but it is apparent from all the testimony that such was the understanding of respondent, and that he did not, as claimed by appellant, accept the six mules in settlement of the whole matter. Upon appellant's refusal to make an agreed case to be submitted to the district judge, this suit was brought, and upon the trial the court properly instructed the jury that "the question whether or not the mules can be returned for horses is out of this case, for the reason that the plaintiff, when Holland offered the six mules, took them into his possession conditionally. He did not reject them on the ground...