Klug v. Munce

• Decision Date: 03 June 1907
• Parties: KLUG v. MUNCE.
• Court: Colorado Supreme Court

90 P. 603

40 Colo. 276

KLUG v. MUNCE.

Supreme Court of Colorado

June 3, 1907

Appeal from Weld County Court; Chas. E. Southard, Judge.

Action by William Munce against John P. Klug. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action of replevin originally brought before a justice of the peace. On appeal to the county court the cause was tried to the court and judgment rendered in favor of appellee (plaintiff below). The evidence discloses the following facts: On February 15, 1902, F. E. Smith & Co., a firm doing business in Greeley, Colo., sold to William Munce, Sr., and Jesse Munce certain property, including two horses, for which they gave their promissory note for $330, payable in installments, the last installment falling due June 1, 1903 and executed a chattel mortgage to secure the payment of the same. These horses were purchased by Smith & Co. from Asa Sterling, and were described in the mortgage as follows 'One gray horse, 5 yrs. old, branded with Sterling's brand; one black horse, coming 5 yrs. old, branded with Sterling's brand.' The chattel mortgage was duly signed, acknowledged, and recorded February 19, 1902. On April 14, 1903, Jesse Munce executed to John P. Klug serveral promissory notes, amounting in the aggregate to the sum of $500, and to secure the payment of the same executed a chattel mortgage which included, with other property, two horses described as follows: 'One iron-gray horse, 8 yrs old, brand '--S,' weight 1150 lbs.; one black horse 6 yrs. old, brand '--S,' weight 1050 lbs.' In the fore part of June, 1903, Jesse Munce delivered to Smith & Co. the property described in the first-mentioned chattel mortgage, including the two horses in controversy, and received a credit therefor of $300 on the note executed by him and William Munce, Sr. Smith & Co. took and held possession of the horses for two days, when they were sold and delivered to appellee. The horses were then in Smith's corral, and remained there until they were taken by appellant without the consent of appellee. Mr. Sterling testified, inter alia, as follows: 'I have two brands--one a reverse letter 'S,' and the other a figure '6' with a half circle. Sometimes it is hardly a half circle. These are my recorded brands. I have put the half circle '6' on some. For a few years I have been putting on the reverse 'S' and later I have put a bar over that 'S." These horses were both branded on the left shoulder with a reverse 'S,' with a bar over it. From a judgment in favor of the plaintiff, defendant prosecutes this appeal.

Geo. W. Miller, for appellant.

Charles F. Tew, for appellee.

GODDARD, J. (after stating the facts).

1. It is contended by counsel for appellant that the court erred in admitting in evidence the chattel mortgage executed by Jesse and William Munce, Sr., because it failed to specifically describe the marks and brands, or otherwise describe the horses, so as to enable third parties to identify them. We think this contention is unwarranted. The color and ages of the horses are given, and, referring to the brands, the language used is: 'Branded with Sterling's brand.' We think this is sufficient to put a party upon inquiry to ascertain what Sterling's brand was, and whether or not the reversed 'S' with bar over it, which plainly appeared upon the left shoulder of the horses, was such brand. The appellant testified that the brand on these horses was a bar over the 'S,' which Mr. Sterling testified was his brand, and that it was the brand used on the horses he sold to F. E. Smith & Co. The evidence as to the age and color of the horses shows that in these respects the horses were correctly described in the mortgage. The rule as to the description of...