Sellar v. Clelland

• Decision Date: 01 February 1875
• Citation: 2 Colo. 532
• Parties: SELLAR et al. v. CLELLAND et al.
• Court: Colorado Supreme Court

2 Colo. 532

SELLAR et al. v. CLELLAND et al.

Supreme Court of Colorado

February, 1875

[Copyrighted Material Omitted]

Appeal from District Court, Arapahoe County.

THE declaration was in case by Jas. Clelland and Chas. M Stebbins(appellees), as partners, against John P. Sellar and Edward F. Kellog(appellants), and Manuel Otero, Charles R Morehead, Eugene B. Allen, David W. Powers, James B. PowersDavid B. Powers, Henry L. Newman and Percival G. Lowe, as partners.It alleged, that in the year 1869the plaintiffs were engaged in the business of transporting freight for hire, and were possessed of a train consisting of sixty yoke of oxen and twenty freight wagons; that the defendants were engaged in the business of transporting government stores from Fort Harker, sometimes called Ellsworth, in Kansas, to Fort Arbuckle in the Indian Territory; that to induce the plaintiffs to transport such stores from the said Harker to the said Arbuckle, and contriving to deceive, defraud and injure the plaintiffs, the defendants at Sheridan, Kansas, falsely, fraudulently, and deceitfully, represented to the plaintiffs that the road sometimes called the 'Chisholm Trail,' leading from Fort Harker to Fort Arbuckle, was not a road over which Texas cattle, so called, or diseased cattle of any kind, had ever passed or been driven, and that, in fact, no Texas cattle had ever passed over said road, and that said road was entirely free from any and all infectious diseases to cattle, and was then safe to the health and lives of cattle, which representations were false, and that the defendants, at the time of making such representations, knew them to be false; that the plaintiffs were thereby induced to enter into a contract with defendants to transport from Harker to Arbuckle, 140,000 lbs. of freight at a price named, and did in fact transport a portion thereof; that in consequence of diseased Texas cattle having been driven over said road, and because of the infection to cattle in said road, and in the air, and grass along the same, caused by driving Texas cattle and diseased Texas cattle along said road, 104 head of plaintiffs' cattle sickened and died, and were lost to plaintiffs.The plaintiffs alleged special damages on account of delay in prosecuting their journey, the expense of protecting the stores during the time for which they were detained in the Indian country, the extraordinary price paid for other cattle with which to remove their wagons from the place where the cattle died, to Fort Arbuckle, and other matters.

The defendants pleaded not guilty, and the cause was brought to trial at the May term, 1873.

At the trial the plaintiffs gave evidence of a bill of lading, which was signed by one of the plaintiffs in behalf of his firm, and by the defendant Kellog in behalf of a firm, the members of which were not named.It appeared that after the journey had been performed, Clelland, one of the plaintiffs, requested Kellog, one of the defendants, to destroy this instrument, and thereupon Kellog tore the instrument once, and threw it on the floor; that Clelland, who was present, then picked it up, and after tearing it again, threw it in the stove.As to the motive of the parties for this, Clelland testified that he requested Kellog to destroy it because he(Clelland) had no copy of it.Kellog testified that Clelland requested that it should be destroyed because he wished to be relieved from a second trip, to which he was therein bound.He afterward stated that Clelland claimed his sympathy on account of the losses he had sustained, and in consideration thereof, asked him (Kellog) to release him (Clelland) from making a second trip.The evidence of Kellog as to the destruction of the bill of lading was not given until the evidence for defense was put in, and secondary evidence as to the contents of that instrument was received in evidence upon the testimony of plaintiff only.

It appeared in evidence on behalf of plaintiffs, that the contract was made at Sheridan, which is a considerable distance from Fort Harker, the point of departure; that at and before the time the contract was made, Kellog made representations concerning the condition of the road, substantially as charged in the declaration, and that plaintiffs would not have entered into the contract but for such representations.That plaintiffs loaded 70,000 lbs. of freight at Harker, and started on the journey to Arbuckle, about July 4, 1869.That upon arriving at the Arkansas river, a distance of about 100 miles from Harker, or Ellsworth, plaintiffs met a large herd of Texas cattle, and thereafter they met numerous herds of Texas cattle, some of which were diseased.

The symptoms of the disease were given, and witnesses testified that it was contagious; that many of the Texas cattle died of it.

Plaintiffs gave evidence tending to prove that 104 head of their cattle died of the same disease between the south fork of the Arkansas river and the north fork of the Canadian, and that such disease was communicated to their cattle by the Texas cattle passing on the road.This point was strongly contested in evidence by the defendants, who afterward introduced much testimony to prove that the disease was not due to the presence of Texas cattle.It further appeared that plaintiffs' cattle died in an uninhabited country, about 70 miles from Fort Sill, and 130 miles from Fort Arbuckle; that, leaving his wagons at that point, the plaintiff Clelland visited Fort Sill and Fort Arbuckle for the purpose of obtaining assistance; that he was unable to procure cattle with which to move his train except by exchanging wagons for cattle at the rate of one wagon for one yoke of cattle, which was much more than the cattle were worth; that plaintiffs paid an extraordinary price for other cattle with which to move their train, and that they were detained at the place where the cattle died for a considerable time.The prices paid to laborers and the cost of provisions for their use was also given in evidence.It appeared that there was no market for cattle at the places where plaintiffs' cattle died, nor at Forst Sill and Arbuckle, which were the nearest points, and evidence was received of the value of cattle at Salina and Ellsworth, Kansas, which points were about 230 miles distant.At the points last named, sales of cattle were infrequent, and plaintiffs were not confined to the month of August, in which the cattle died, but were allowed to give evidence of the state of the market before and after that time, and in one instance prices early in October were named.The defendants objected to much of the evidence, and the objections were overruled.There was nothing in the evidence to connect any of the defendants, excepting Kellog and Sellar, with the transaction, and after plaintiffs' evidence was in, defendants moved for nonsuit upon that ground.Thereupon the court allowed plaintiffs to amend their declaration, as stated in the opinion, and the motion was denied.The defendants put in much evidence to contradict the evidence offered by plaintiffs, and especially as to the representations alleged to have been made by Kellog concerning the road or trial.After defendants had closed their evidence, plaintiffs were allowed to give further evidence of the value of the cattle lost by them, to which defendants objected that such evidence was not admissible at that time, and the objection was overruled.Defendants presented numerous prayers for instructions, which are sufficiently referred to in the opinion.

The charge of the court was as follows:

The burden of showing by a preponderance of evidence the existence of every material fact necessary to a recovery is upon the plaintiffs.

1.'Plaintiffs must show by a proponderance of evidence (1) that in June, 1869, the defendants were copartners in the business of transporting government stores from Fort Harker to Fort Arbuckle.(2) That, in order to induce plaintiffs to enter into a contract for the transportation of freight from Fort Harker to Arbuckle, the defendants, or one of them, acting about a business wherein they were jointly interested as copartners, made the representations charged in the declaration, and spoke of the matter as within his own knowledge.(3) That the representations charged were made under such circumstances that the plaintiffs were entitled to and did accept and confide in them as true, and on the faith of them entered into such contract, and that they afterward proceeded to comply, or attempt to comply therewith.(4) That the representations complained of were false, and that injury and damage has occurred to the plaintiffs by reason of the falsity of such representations, and not by reason of the negligence of the plaintiffs or other causes.

2.'You will first consider whether defendants are or are not guilty of the deceit charged in the declaration.

3.'If, in June, 1869, the defendants were jointly interested as copartners in the transportation of government stores from Fort Harker to Fort Arbuckle, and in order to induce the plaintiffs to enter into a contract to transport such freight for the defendants from Fort Harker to Fort Arbuckle, the defendant, Kellog, represented to the plaintiffs, or one of them, that no Texas cattle had been driven over or upon the road, by which plaintiffs, if they should accept such contract, must travel; and that plaintiffs, if they should accept such contract, would not travel within twenty-five or thirty miles of the road by and over which Texas cattle were driven, and declares that he knew this of his own knowledge, or spoke of it as a matter within his own knowledge, and if in the same circumstances a man of ordinary prudence would have relied on the same representations, and if plaint...