Kieth v. Kerr

• Decision Date: 06 December 1861
• Citation: 17 Ind. 284
• Parties: Kieth v. Kerr and Another
• Court: Indiana Supreme Court

17 Ind. 284

Kieth v. Kerr and Another

Supreme Court of Indiana

December 6, 1861

APPEAL from the Parke Circuit Court.

The judgment is reversed, with costs. Cause remanded.

Bryant McDonald and Roache, for the appellant.

OPINION

Davison J.

The appellees, who were the plaintiffs, sued Flurey Kieth Alexander McCune, Henry McCune, Henry McLane, and Reuben Lowhorn, alleging in their complaint that the defendants, on December 20, 1857, wrongfully &c. seized, took into their possession, drove away, slaughtered, and converted to their own use, 16,371 lbs. gross, of hogs, of the value of $ 1,000, to the plaintiff's damage, &c. Kieth answered: 1. By a denial. 2. That the property described, &c. at the time it was taken possession of by him, was in the possession of said Lowhorn, to whom the same had been sold and delivered by the plaintiffs, and that Lowhorn sold and delivered the property to him, Kieth, who, on the day named in the complaint, took possession of it, as he had a right to do, by virtue of said sale and delivery to him, and converted it to his own use, &c. Lowhorn also filed a separate answer, in which he alleges, "that on December 24, 1857, he contracted with the plaintiffs for fifty-three head of fat hogs, weighing, gross, 16,371 lbs., for which he was to pay $ 3.50 per one hundred pounds, gross weight, on delivery of the hogs, by them to him, at the pens in Montezuma, Parke county, Indiana; that said hogs were, in pursuance of the contract, weighed on said December 24, and were to be delivered by the plaintiffs in a reasonable time thereafter, at the place aforesaid; but the same were to remain the property of the plaintiffs, until paid for at the pens aforesaid, according to the terms of the contract. Defendant avers that at no time hitherto, has he had possession, or the right of possession of said hogs; that the same were never delivered or tendered to him by the plaintiffs, nor has he paid, or offered to pay, the plaintiffs one cent on said hogs. And now, as at all times heretofore, this defendant disclaims any right of possession in, or to, said hogs, and denies that he ever directed, authorized, or gave any one leave to take possession of them; and this, his disclaimer, he enters in open court, &c. Defendant also denies that he is guilty of the trespasses alleged, &c.

The other defendants answered by general denial, &c. The issues having been completed, the cause was submitted to a jury. During the trial, all the defendants, save the McCunes and Kieth, were discharged. And upon final hearing, the jury rendered a verdict in favor of the McCunes, and against Kieth. Judgment, over a motion for a new trial, was accordingly given. Kieth appeals to this Court.

While the trial was in progress, the defendants having on notice to produce, &c., obtained an inspection of a written instrument executed by Lowhorn to the plaintiffs, gave the same in evidence to the jury. The instrument reads thus:

"I have this day bought of James and S. P. Kerr, 16,371 lbs. gross, of hogs, amounting to 590 dollars and 48 cents, to be paid for at the pens at Montezuma."

(Signed) "Reuben Lowhorn."

It also appears that upon the trial, the plaintiffs, over the defendants' objection, gave in evidence the answer of Lowhorn. And further, it appears that the Court, the evidence being closed, thus instructed the jury: "The writing introduced by the defendants, signed by Lowhorn alone, and claimed by them to be the only admissible evidence of the contract between the parties, is not binding on the plaintiffs if not signed by them, and the same being in evidence, does not preclude the plaintiffs from showing by parol testimony that such writing did not embrace the entire contract." Though various errors are assigned, the appellant, for a reversal, relies alone upon two points, and the...