Lamotte v. Wisner

• Decision Date: 18 June 1879
• Citation: 51 Md. 543
• Parties: HARRISON H. LAMOTTE v. JOHN WISNER.
• Court: Maryland Court of Appeals

51 Md. 543

HARRISON H. LAMOTTE v. JOHN WISNER.

Court of Appeals of Maryland

June 18, 1879

APPEAL from the Circuit Court for Carroll County.

The case is stated in the opinion of the Court.

Exceptions.--At the trial the plaintiff offered eleven prayers, all of which were omitted from the record by consent except the following:

7. That the defendant has offered no legally sufficient evidence to maintain the issues joined on his second and third pleas, and that the verdict of the jury must be for the plaintiff on the defendant's said second and third pleas.

11. If the jury find from the evidence, that the said Benjamin Worthington, on or about the 8th day of May, 1877, put the cows, in the declaration mentioned, in the possession of the plaintiff, or that on or about the 11th day of May, 1877, the plaintiff purchased said cows from said Worthington, and that some of the calves in the declaration mentioned, were born whilst said cows were in his possession, and that the others were born whilst in the possession of the defendant, and that said cows and the calves born from them whilst in the possession of the plaintiff, were taken from his possession by Benjamin I. Worthington, and others mentioned by the witness, and put into the possession of the defendant, and were retained by him, and that whilst they were in defendant's possession, and before this suit the plaintiff demanded possession of said cows and calves, in the declaration mentioned, and the defendant refused him the possession thereof, and shall further find that the defendant was not the owner of said cattle, the plaintiff is entitled to recover.

The defendant offered the following prayers:

1. That if the jury find from all the evidence, that the defendant on the 28th May, 1877, at the time when the cows and calves in the declaration mentioned were delivered at his premises, was a keeper of a hotel or inn in Hampstead, Carroll County, and that said cattle were driven by other persons from the premises of the plaintiff, a mile distant from said inn, if the jury so find, to the said hotel or inn of defendant, and were driven and put by said persons in the yard of said hotel or inn and left there, and that said hotel or inn was the nearest inn to said plaintiff's premises, and the most convenient place for safe-keeping said cattle, and that said cattle were put in the said yard of said inn for safe-keeping, and that defendant was not in any manner connected with driving or taking said cattle from plaintiff's premises or possession, and did no act in connection with said cattle being placed in his said yard of said inn, other than to aid in turning them into said yard from the public road, at a distance of a mile from said plaintiff's premises, if the jury so find, then the verdict must be for the defendant, under the first plea in this cause.

2. If the jury find from all the evidence, the facts set forth in the preceding first prayer, and further find that the cows and calves in question in this case, were taken or seized on the plaintiff's premises by a constable of Carroll County, under a claim of authority to do so, in virtue of a warrant issued by a justice of the peace of the State of Maryland, in and for said county, on the said 28th day of May, 1877, if the jury so find; and shall further find that the cows and calves were driven and taken from the plaintiff's premises and possession on said occasion, by the persons in the first prayer mentioned and referred to, in conjunction with, and in aid of, and by direction of said constable, and under the authority of said constable, if the jury so find; and further, that said constable was, and went with said persons and said cattle, driving the same from the said plaintiff's premises to Hampstead, and that said cows and calves were driven to and placed in the yard of defendant's inn by said constable, and by his direction for safe-keeping, under a claim by said constable of authority therefor, under a warrant of a justice of the peace, and that said cattle were left in said inn yard by said constable, under said claim of lawful authority, if the jury so find; and further, that defendant had nothing to do and did nothing in connection with the acts and doings aforesaid, if the jury find the same, except to receive and take care of said cattle in his said inn yard, by direction of said constable, if the jury so find, the verdict of the jury must be for defendant under the first plea.

3. That if the jury find from all the evidence in the case, that the plaintiff did not, on or about the 11th day day of May, 1877 bona fide purchase the cows in question from Benjamin Worthington, as and for the plaintiff's own property, the verdict of the jury must be for the defendant.

4. That before the jury can find a bona fide purchase of said cows, as mentioned in aforegoing third prayer, the jury must find from the evidence that on or about said 11th day of May, and on the occasion when said alleged purchase was made the plaintiff paid to said Benjamin Worthington some portion of the purchase money agreed on, or that said Worthington on that occasion made a delivery of said cows to the plaintiff.

5. If the jury find from all the evidence, that said cows were driven to and placed on plaintiff's premises by Benjamin Worthington, on or about 8th May, 1877, and that they remained thereon as the property of said Benjamin Worthington, if the jury so find, until on or about the 11th day of said May; and that on or about said 11th day of said May, it was agreed by and between the plaintiff and the said Benjamin Worthington, that said Worthington then sold the said cows to the plaintiff at and for the sum of $300, and that plaintiff agreed to purchase the same at said price, if the jury so find; and shall further find that on said occasion the plaintiff did not pay to said Benjamin Worthington, anything on account of said purchase money, and said Worthington did not then make any delivery of said cattle to the plaintiff, then there was no valid bargain and sale of said cattle to the plaintiff on that occasion.

6. If the jury find from all the evidence, that on or about the 11th day of May, 1877, it was agreed by and between the plaintiff and Benjamin Worthington, that the plaintiff would give the said Worthington $300 for the cows in question, but that if said Worthington could get more for them, he should or could do so, and sell them to anybody who would give him more, then the said transaction did not amount to a valid bargain and sale of said cows.

7. If the jury find from all the evidence, that on the 11th May 1877, said Benjamin Worthington was indebted to the plaintiff in the sum of over $60, or between $60 and $70, on account of a judgment against said Worthington, and superseded by said plaintiff, and paid by plaintiff as superseder, if the jury so find, and also in the sum of $100 cash loaned, for which said Worthington had given plaintiff two promissory notes for $50 each, with said Worthington's wife as security, and also an open account for the sum of $13 or thereabouts; and if they further find that on said day it was agreed, by and between said Worthington and the plaintiff, that the plaintiff should keep said cows as collateral security for the said moneys so due from said Worthington, then said transaction was not a valid bargain and sale of said cows to the plaintiff.

8. If the jury find from all the evidence. that on the 11th day of May, 1877, the said Worthington, in the last preceding prayer mentioned, was indebted to the plaintiff as in said prayer set forth; and shall further find that on said day it was agreed by and between said Worthington and the plaintiff, that the plaintiff should purchase said cows at and for the sum of $300, and that said debts so due to plaintiff, should go and be taken as part of said purchase money, and that the plaintiff should pay to said Worthington the balance of said purchase money whenever he could make the same; and shall further find that on said occasion the plaintiff did not deliver up to said Worthington either of said notes, or said judgment, or said open account, or any receipt or other evidence of payment, or satisfaction of the same, or any part thereof; and shall further find that plaintiff did not pay to said Worthington anything on account of said purchase money; and if they shall further find that said cows were then on plaintiff's farm and premises, and had so been for two or three days, and that said Worthington did not make any delivery of said cows to the plaintiff, then said transaction did not amount to a bargain and sale of said cows to the plaintiff.

9. If the jury shall find from all the evidence that the said Benjamin Worthington, on the afternoon of Sunday, the 6th day of May, 1877, removed said cows from the farm belonging to Benjamin I. Worthington, in Baltimore County, and then occupied by said Benjamin Worthington, as tenant, if the jury so find, for the purpose of preventing the said Benjamin I. Worthington, either from levying a distress on the same, for rent due to said Benjamin I. Worthington, if the jury so find, or from selling the same under a distress for rent due before that time levied and made, if the jury so find, and brought said cows to Carroll County, and on the 8th day of said May, took the same to the premises of plaintiff for the purpose aforesaid; and if the jury shall find that the plaintiff combined with said Benjamin Worthington for the purpose aforesaid; and pretended to purchase said cows in pursuance of said purpose, and did not actually bona fide purchase said cows, if the jury so find, then the said transaction was a fraud, and the plaintiff cannot recover in this cause.

10. If the jury believe from all the...