Gonzales v. Ilfeld.

• Decision Date: 25 October 1919
• Docket Number: No. 2307.,2307.
• Citation: 185 P. 1110,25 N.M. 608
• Parties: GONZALESv.ILFELD.
• Court: New Mexico Supreme Court

25 N.M. 608

185 P. 1110

GONZALES

v.ILFELD.

No. 2307.

Supreme Court of New Mexico.

Oct. 25, 1919.Rehearing Denied Jan. 12, 1920.

Syllabus by the Court.

The rule that a person who mingles his goods with those of another forfeits his own goods does not apply where the act of commingling was not done willfully, with a fraudulent or other improper intent or purpose.

Appeal from District Court, San Miguel County; Leahy, Judge.

Replevin by Maximiana Gonzales against Pablo Gonzales, with intervention by Charles Ilfeld. Judgment for plaintiff, and intervener appeals. Reversed, with instructions.

In 1910 or 1911, the date not being material in this case, the appellee, Maximiana Gonzales, intrusted to her brother, Pablo Gonzales, defendant in the court below, 554 sheep. These sheep belonged to her and were marked with her earmark. They were to be herded and cared for by Pablo Gonzales for his sister, and were kept by him until the year 1917, except a large number of them which died and a few old ones that were sold.

On October 27, 1911, a contract was entered into between Mrs. Gonzales, appellee, Pablo Gonzales, her brother, and Charles Ilfeld, under which Ilfeld intrusted to them and delivered to Pablo Gonzales, on partido contract, 500 ewe sheep. It was provided by this contract that the sheep and their increase were marked and were to be marked with appellee's earmark, which earmark it is alleged in said contract belonged to the appellant, Ilfeld.

There is no proof that Charles Ilfeld had any knowledge that the earmark called for in the contract belonged to Mrs. Gonzales. The mark was unrecorded, but the proof showed that it had been used by Mrs. Gonzales and her deceased husband on their sheep for over 20 years. It was also provided in this contract that the earmark should be and remain the earmark of Charles Ilfeld.

At the time the present controversy arose all the original ewes had died or had been disposed of, and we are interested only in the increase, all of which were marked in accordance with the contract. These 500 sheep were placed in the same herd with the 544 sheep of Mrs. Gonzales, and as the old ones died and the increase from both herds were marked with the same earmark, it became impossible to distinguish the sheep belonging to Ilfeld from those belonging to Mrs. Gonzales.

On or about November 25, 1914, Charles Ilfeld intrusted to Pablo Gonzales and Vidal Urioste 468 more ewes, and Gonzales and Urioste agreed between themselves that Gonzales should take 168 and Urioste 300. The increase of these 168 had been also marked by Gonzales with the earmark mentioned in the first contract. This marking had been done without the knowledge or consent of either Mr. Ilfeld or Mrs. Gonzales. When these 168 head were placed in the herd there had already been large losses from the ewes then being run by Gonzales. There should then have been in the herd 1,044 head--the 544 he received from his sister, Mrs. Gonzales, plus the 500 that his sister received from Mr. Ilfeld. He had at this time, however, only 714 head, and because of the identical earmarks it was then impossible to distinguish one from another. The mingling of the 468 made a total, together with the 714, of 1,182 then in the herd, of which, as the increase of the 168 were earmarked in the same manner, 882 came to have identical earmarks.

At this time the contract of 1911 between Charles Ilfeld, Pablo Gonzales, and Maximiana Gonzales was still in force, and continued in force until October 25, 1915, when it was superseded by a new contract between Charles Ilfeld, Pablo Gonzales, and Vidal Urioste covering the same sheep. Mrs. Gonzales and her brother were then short a considerable number of the Charles Ilfeld sheep, and Pablo Gonzales testified in effect that his sister then authorized him to turn over to Mr. Ilfeld a total of 500 sheep from his herd in satisfaction of the 1911 contract, making up the shortage in the Ilfeld contract out of her part of the herd. The appellee, Mrs. Gonzales, denies that she authorized her brother to turn over any sheep to Ilfeld.

When the writ of replevin in this case was served, September 25, 1917, the whole herd consisted of 998 head, of which 544 had the joint earmark; these being all that were left of the...