Gentry v. Singleton

• Decision Date: 07 March 1904
• Docket Number: 1,853.
• Citation: 128 F. 679
• Parties: GENTRY v. SINGLETON.
• Court: U.S. Court of Appeals — Eighth Circuit

128 F. 679

GENTRY v. SINGLETON.

No. 1,853.

United States Court of Appeals, Eighth Circuit.

March 7, 1904

N. A Gibson, Benj. Martin, Jr., and N. B. Maxey, for plaintiff in error.

Preston C. West, for defendant in error.

VAN DEVANTER, Circuit Judge.

This was an action in the United States Court for the Indian Territory by Singleton against Gentry to recover the value of 56 steers alleged to have been the property of the plaintiff and to have been converted by the defendant to his own use. A trial by jury resulted in a judgment for plaintiff, which was affirmed by the Court of Appeals for the Indian Territory. Gentry v. Singleton, 69 S.W. 898. It is complained, first, that at an early stage of the trial the court held that, if the defendant desired to contend that the number of steers included in the transactions under examination was less than 56, he must carry the burden of proving that fact. Even if the ruling was erroneous when made, no harm or prejudice resulted from it, because thereafter it was affirmatively shown by uncontradicted evidence produced by plaintiff, and also by evidence produced by defendant, that 56 was the correct number. It is complained next that defendant was, by several rulings at the trial, unduly restricted in the cross-examination of John A. Skaggs, a witness for plaintiff. If there was error in this, it was equally without harm or prejudice, because defendant subsequently amended his answer, and then, without any restriction, proceeded with the cross-examination of the witness, and fully interrogated him upon every matter covered by these rulings. Another complaint is that Charles Bruner, a witness for defendant, was not permitted to answer the question, propounded by defendant: 'Who did you understand you were selling the cattle to? ' Bruner, who was then the owner of the steers, sold them shortly before the alleged conversion, and the purpose of his examination was to show to whom the sale was made-- whether to plaintiff or to plaintiff and others, including one Henry, to be mentioned later. Bruner's recollection of the transaction seemed entirely clear, and he was permitted to testify to all that was said and done at the time of the sale. The inference or understanding to be properly drawn from what occurred at that time was to be determined by the court and jury, and the unexpressed thought or understanding of the witness was wholly immaterial.

The principal reliance for a reversal is upon the action of the court, at the conclusion of the evidence, in instructing the jury to return a verdict for the plaintiff, leaving for the jury's determination only the amount of damages. In this the court followed the established rule that, when the evidence so conclusively entitles one party to a verdict that a verdict for his opponent would have to be set aside, the court may direct a verdict for the party entitled to it. Elliott v. Chicago, etc., Ry. Co., 150 U.S. 245, 14 Sup.Ct. 85, 37 L.Ed. 1068; Coughran v. Bigelow, 164 U.S. 301, 307, 17 Sup.Ct. 117, 41 L.Ed. 442; Grimes Dry Goods Co. v. Malcolm, 164 U.S. 483, 492, 17 Sup.Ct. 158 41 L.Ed. 524; Motey v. Pickle, etc., Co., 20 C.C.A. 366, 74 F. 155; Ponder v. Jerome Hill Cotton Co., 40 C.C.A. 416, 100 F. 373; Cudahy Packing Co. v. Marcan, 45 C.C.A. 515, 106 F. 645, 54 L.R.A. 258. This case comes well within this rule. The uncontradicted evidence showed this state of facts: Singleton and the witness Skaggs entered into an arrangement whereby the latter was to buy cattle in the Indian Territory with money supplied by the former, and the cattle were to be taken to Kansas by Skaggs, and there sold, and the profits divided equally between them. Skaggs then entered into an arrangement with one Henry, whereby the latter, or a man furnished by him for the purpose, was to assist Skaggs in caring for the cattle and in taking them to Kansas, and was to receive as compensation for this service one-half of the profits to which Skaggs would be entitled. Henry was to have no interest in the cattle, and was not to have authority to buy or sell. Singleton assented to this arrangement. Skaggs and Henry subsequently went to the home of the witness Bruner, and the 56 steers before named were then purchased from him. The negotiations leading to the purchase were entirely between Skaggs and Bruner, and the steers were paid for by Skaggs' individual bank checks, drawn against money supplied by Singleton. Henry was introduced to Bruner by Skaggs as 'the man that is helping me with the cattle. ' The steers were to remain for a short time in the pasture of Bruner, without his being responsible for them; Skaggs stating 'that he or Mr. Henry would be around there to look after the cattle. ' A few days later, Skaggs branded the steers with a brand in which Henry is not claimed to have had any interest. Without the permission or knowledge of Singleton or Skaggs, Henry took the steers from Bruner's pasture and sold them, with other cattle of his own, to defendant, who bought, shipped, and sold the steers without knowing their true ownership, or Henry's relation to them. There was some evidence to the effect that prior to this transaction Henry and Skaggs had been together much, and that it was 'understood' in the community that Henry was 'associated or connected' with Skaggs in the 'cattle business'; but there was no evidence that either Singleton or Skaggs had held Henry out as a partner, or as authorized to buy or sell cattle on behalf of either or both of them, or as having an interest in the steers. Nor was there any evidence that Henry had made any other sale of cattle belonging to Singleton and Skaggs, or either of them. Neither Singleton nor Skaggs received any part of the purchase price paid to Henry, or otherwise ratified the sale to defendant. After learning what had been done with the steers, and without unreasonable delay, Skaggs informed defendant of their true ownership, and of the unauthorized character of the sale. Referring to this, the defendant testified:

'Q. You stated, I understood, Mr. Gentry, that, whilst your communications were going on about a settlement with Mr. Skaggs and Mr. Singleton, that you received a telegram from Mr. Henry to hold onto those cattle-- that he would guaranty the title? A. I received a telegram at Checotah signed 'J. M. Henry.' I don't know anything about it. Q. You were then informed that Henry was the man that sold you the cattle, and that he had no right to sell them to you, and you made no inquiry about Henry? You had been informed that Henry had no right to sell those cattle when Skaggs came there? You knew where Henry was, because you got a telegram telling you to hold onto them? A. Yes, sir. Q. That he would defend them in any court? A. Yes, sir. Q. You relied on that, and did not make any further effort to collect from Henry? A. Yes, sir.'

Henry soon left the country and his whereabouts were thereafter unknown. As bearing upon the ownership of these steers, as between plaintiff and Skaggs, plaintiff testified:

'Q. Were you the owner of the cattle sued for in this action? A. Yes, sir.'

Skaggs was a witness, and did not...