Lowman v. Sheets

• Decision Date: 22 March 1890
• Citation: 124 Ind. 416,24 N.E. 351
• Parties: Lowman v. Sheets.
• Court: Indiana Supreme Court

124 Ind. 416

24 N.E. 351

Lowman

v.Sheets.²

Supreme Court of Indiana.

March 22, 1890.

Appeal from circuit court, Benton county; Peter H. Ward, Judge.

Action by James A. Lowman against Frederick Sheets. Judgment for defendant. Plaintiff appeals. Rev. St. Ind. 1881, § 546, provides that the court shall, at the request of either party, direct the jury to give a special verdict in writing upon all or any of the issues.Wallace, Baird & Chase, for appellant. E. P. Hammond, M. H. Walker, Daniel Fraser, Isaac H. Phares, and W. B. Austin, for appellee.

Coffey, J.

This was an action by the appellant against the appellee, to recover the possession of 40 brood-mares described in the complaint. The complaint alleges that he is the owner, and entitled to the possession, of the property, and that the appellee unlawfully detains the possession thereof from him. The cause was submitted to a jury, who returned the following special verdict: “State of Indiana, Benton county-ss.: Benton circuit court, September term, 1887. James A. Lowman v. Frederick Sheets. (No. 1032.) We, the jury, having been instructed to return a special verdict herein, find the facts to be as follows: About the 8th day of April, 1887, one Leroy Templeton was the absolute owner of the forty mares in controversy in this case, and on that day bargained to the defendant, Sheets, a one-half interest in said mares at and for the price of forty-five dollars for each of said mares; said mares in said bargain being valued at ninety dollars each. By the terms of said sale, said defendant was to have possession and care and control of said mares, and was to keep the same until March 1, 1891. Said Templeton was to furnish pasture for the same until October 1, 1887, after which the feed for said animals was to be furnished at the equal expense of said Templeton and said defendant. Said defendant, from the time of making said bargain, was to look after, and have the control and possession of, said mares, in the pasture furnished by said Templeton, up to October 1, 1887, and was thereafter to continue to feed and take care of said animals, and to have the possession of the same. Said Sheets was to pay said Templeton interest at seven per cent. on the purchase price of said mares from October 1, 1887, and was to have the option to pay said purchase money when he saw proper, on or before March 1, 1891. On March 1, 1891, the interest of said parties in said mares, and the proceeds thereof, was to be equal, after accounting to each party for his portion of the expense, and also after payment to Templeton by the defendant of the purchase price for the one-half interest thereof, with interest, if the same had not been previously paid. By the terms of said bargain, said mares were to be kept exclusively for breeding purposes, and were not to be worked or sold, broken or traded, by either party, prior to March 1, 1891, except by consent. Said bargain was not in writing. Pursuant to said contract, said Templeton, on the same day that it was made, to-wit, about April 8, 1887, delivered possession of said mares to said Sheets, who remained in possession and care of the same, having the same in a pasture furnished by said Templeton, in said county, until the 16th day of June, 1887, when said Templeton and said plaintiff, without the knowledge or consent of said Sheets, took said mares from said pasture, and placed them in a pasture of the plaintiff's, about half a mile distant from where they were taken. The possession of said property was taken by said Lowman under a sale made to him by said Templeton on the 16th day of June, 1887, on which day said Templeton sold said property to said Lowman for the sum of thirty-four hundred dollars, to be paid by said Lowman in six months after said date, which was evidenced by a promissory note executed by plaintiff to Templeton, payable in a bank in this state, which said note is still held by said Templeton, and is still wholly unpaid. Said Sheets had no notice, knowledge, or information of said sale by Templeton to the plaintiff until after the same was made, and the possession of said property taken by the plaintiff as aforesaid; nor did he ever afterwards consent to the same. On the 22d day of June, 1887, said defendant, without objection or resistance, took said mares from plaintiff's pasture, where plaintiff had put them as aforesaid, and put them in his, said defendant's, own pasture, on Fowler & Van Natta's farm, in said county; the same being about four miles from the pasture where said animals were when taken by the plaintiff as aforesaid, and about the same distance from the plaintiff's said pasture, from which they were taken by the defendant as aforesaid. While said animals were in the possession of the defendant as aforesaid, said plaintiff, on the 22d day of June, 1887, before the commencement of this action, demanded said property of said defendant; but said defendant refused to deliver him the possession thereof. Said plaintiff on the same day commenced this action, and, upon a writ of replevin herein issued, and upon the plaintiff's undertaking, approved by the sheriff, said sheriff, on said writ, delivered said property to the plaintiff, who, by virtue of said delivery of possession, has since retained, and is now in the possession of, said property. Said property is now of the aggregate value of $3,400. At the same time of making the sale of a half interest in said mares to said Sheets, said defendant and said Templeton entered into a bargain whereby said Templeton was to lease to said Sheets 800 acres of real estate owned by said Templeton in said county for the term of three years, to commence on the 1st day of March, 1888. Said lands were the north half of each of two adjoining sections owned by said Templeton, one lying immediately east of the other, and the south-west quarter of said east section. The precise location of said lands so leased was well understood and agreed to by the parties at the time of making said bargain. By the terms of said bargain, said land was to be cultivated in corn, oats, pasture, and meadow, as said Sheets might determine, and, as rent for the same, said Sheets was to deliver to said Templeton, on said premises, one-third of the corn raised thereon in the crib, one-third of the oats in the bin, and three-fifths of the hay in the stack, and to pay $2.50 per acre for all the pasture except thirty acres, for which no charge was to be made. Said Templeton was, before March 1, 1888, to move a house from a designated part of said premises to another designated part thereof, and to put the same in a tenantable condition, at an expense of not exceeding $300. At the same time that Templeton sold a half interest in said mares as aforesaid, and at the same time that he leased said defendant said real estate as aforesaid, said Templeton and defendant entered into a bargain whereby it was agreed by and between them that such portions of the hay and grain as should be raised upon said leased premises by said defendant, as the parties should determine, should be fed to stock, which stock was to be purchased from year to year by said parties with money to be borrowed by them jointly, and to be taken care of by said defendant on said premises; the expense of feeding the same to be borne by Templeton and the defendant equally, and the net profits thereof to be divided between them equally. Said mares were also to be kept on said leased premises after March 1, 1888. None of said bargains were in writing. Said sale of a half interest in said mares by said Templeton to said defendant would not have been made if said Templeton had not at the same time leased said defendant said real estate as aforesaid; but said sale of said half interest in said mares to said defendant, and said lease of said real estate, were in no wise dependent upon said other contract, and would have been made though said other contract had not been made. If, upon the foregoing facts, the law is with the defendant, then we find, for the defendant, that the property in controversy should be returned to him, or, if return thereof cannot be had, that he should have judgment for one-half the value of the mares described in the complaint. Thos. S. Lamb, Foreman. But if, upon the foregoing facts, the law is with the plaintiff, then we find, for the plaintiff, that he keep and retain possession of the property in controversy, and that he recover from the defendant one cent for his damages herein. Thos. S. Lamb, Foreman.” The appellant moved the court for judgment in his favor on the special verdict, which was overruled. The court sustained a ...