Meyers v. Hart
| Citation | 3 Colo.App. 392,33 P. 647 |
| Parties | MEYERS v. HART. |
| Decision Date | 12 June 1893 |
| Court | Court of Appeals of Colorado |
Error to district court, La Plata county.
Action in replevin by Thomas B. Hart against A.C. Meyers and others. Plaintiff had judgment, and defendant Meyers brings error. Affirmed.
The other facts fully appear in the following statement by REED J In August, 1885, plaintiff instituted suit against defendants, A.C. Meyers, George E. West, and Frank H. West in replevin, alleging that in October, 1880, he was the owner of 450 head of cattle and 16 head of horses, and that in November, 1880, the defendants appropriated the property, and converted the same to their own use, praying judgment for $15,000. Defendants Meyers and Frank H. West answered generally denying the allegations in the complaint, and specifically, by second answer, alleging that in the fall of 1880 the plaintiff was indebted to sundry persons to the amount of $10,000; that to secure the sum of $7,500 of such indebtedness, on the 8th day of September, 1880, he made and delivered a chattel mortgage on a lot of cattle then in La Plata county to one John H. Werkheiser, payable on or before October 10, 1880; that at maturity plaintiff was not able to pay the debt; that about December 1, 1880, plaintiff and defendants entered into an agreement whereby plaintiff sold, transferred, and turned over to the defendants the stock covered by the chattel mortgage to Werkheiser, and all other cattle and horses on the range owned by plaintiff, and executed a bill of sale in writing; that the defendants on their part agreed with the plaintiff that they would assume and pay the indebtedness due to Werkheiser; that the cattle and horses alleged in the complaint to have been converted to the use of the defendants were the cattle and horses covered by the chattel mortgage, and sold and transferred to the defendants by the bill of sale, and that such stock was all that came into the possession of the defendants; that it was further agreed that defendants should sell any or all of the cattle and horses if they should see fit to do so, pay off the mortgage debt, pay themselves for their trouble, and all expenses of herding and caring for the stock, and other necessary expenses; that, in pursuance of such agreement, plaintiff delivered the possession to the defendants of all cattle and horses he owned on the range, the number unknown, but to be ascertained when the stock was gathered; that, in pursuance of such agreement, defendants paid off and discharged the Werkheiser mortgage, and the cost of keeping and gathering the cattle, and all other incidental expenses and charges; that in October, 1882, at the town of Durango, they had a full and complete settlement of all matters between them pertaining to the stock; that in such settlement the defendants returned and delivered to the plaintiff, on the respective ranges, all the stock not sold or disposed of by them, which was received and accepted by the plaintiff; at the same time an account was taken and stated between the plaintiff and defendants of all matters in difference between them; that, upon such statement and accounting, a balance was found due the plaintiff, for which they turned over and delivered to the plaintiff two horses, which were received by the plaintiff in full satisfaction and discharge of the balance so found due. A replication was filed, denying each allegation in the answer. George E. West filed a separate answer, disclaiming all interest and participation in the transactions as a principal, averring that the only action he ever took in the premises, and the only connection he ever had with it, was as an employe of Meyers and Frank H. West, and as their agent. On the issues so made, the case was tried to a jury. At the close of plaintiff's testimony, a motion for a nonsuit was made, which was overruled by the court, and an exception taken. A large number of errors are assigned, the first five being to the admission and rejection of evidence. The court gave to the jury, upon its own motion, 10 instructions, on each of which errors were assigned. The refusal of the court to give four instructions prayed by the defendants is assigned as error. It was also assigned as error that the court modified three instructions prayed by the defendants. Counsel for the defendants asked the court to propound to the jury, for special findings and answers, a list of specific questions, which were refused by the court, and exception taken. The jury found for the plaintiff, as against Meyers and Frank H. West, in the sum of $800, and as to George E. West the finding was for the defendant. Meyers and Frank West moved the court to set aside the verdict, and for a new trial, which was denied. Judgment entered upon the verdict, and an appeal taken by A.C. Meyers to this court.
Russell & McCloskey, for plaintiff in error.
Adair Wilson and Thompson & Ingersoll, for defendant in error.
REED J., (after stating the facts.)
This case is rather peculiar. It started in as an action of replevin, and came out as a money demand for money received by the...
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Watkins v. Mountain Home Co-operative Irrigation Co.
...could enforce the finding of a special verdict by the jury. (Shaw Lumber Co. v. Manville, 4 Idaho 369, 39 P. 559; Meyers v. Hart, 3 Colo. App. 392, 33 P. 647.) answers to special interrogatories are not ground for reversal, where the interrogatories were such that no answers which could hav......
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