Thompson v. Anderson

• Decision Date: 25 October 1892
• Citation: 53 N.W. 418,86 Iowa 703
• Parties: THOMPSON v. ANDERSON.
• Court: Iowa Supreme Court

86 Iowa 703

53 N.W. 418

THOMPSON

v.ANDERSON.

Supreme Court of Iowa.

Oct. 25, 1892.

Appeal from district court, Buena Vista county; LOT THOMAS, Judge.

Action in two counts to recover damages for an alleged wrongful conversion of 17 head of cattle and 58 head of hogs. Plaintiff alleges in the first count that he had a landlord's lien upon said property for rents due to him from N. H. Jacobs, and that defendant purchased the cattle and hogs from Jacobs, and has converted them to his own use, and refuses to account therefor. He alleges in the second count that he held a chattel mortgage from Jacobs on said cattle and hogs, and that defendant unlawfully converted them to his own use, as aforesaid. Defendant answered, denying generally. The case was tried to a jury, and a verdict and judgment for the defendant. Plaintiff appeals.Sweeley & Galpin and F. H. Helsell, for appellant.

T. H. Chapman and C. A. Irwin, for appellee.

GIVEN, J.

1. Appellant assigns as error the giving of the following in the seventh paragraph of the court's charge: “As to third persons buying property from a tenant, which was kept upon leased premises, the landlord's lien would only attach to such property as was owned and used by the tenant on the leased premises. As against third persons the landlord's lien will not attach to personal property owned and kept only upon the premises for the purpose of barter and sale in the tenant's regular course of business, and not used by him upon the demised premises.” Appellant contends that there was neither issue nor evidence to justify the giving of this instruction, and for these reasons it was misleading and prejudicial. The plaintiff alleged that the cattle and hogs were owned and used by his tenant, N. H. Jacobs, on the leased premises, which allegation was denied, thereby putting in issue the allegation that the cattle and hogs were used on the leased premises. Under a familiar rule the defendant might prove any fact under his general denial that would negative the plaintiff's allegation. To have proven that the cattle and hogs were kept for barter and sale only would negative the allegation that they were kept for use; therefore the instruction was justified, so far as the issues are concerned.

Appellee contends that appellant does not state in his abstract that it is an abstract of all the evidence. Appellant filed an amended abstract, in which he so states; and, as this is not denied, we must conclude we have an abstract of all the evidence. The only evidence tending to show the purpose for which the cattle and hogs were kept upon the leased premises is that of the tenant. N. H. Jacobs. This shows that “he kept and used” them on the leased premises. There is no evidence whatever that they were kept for the purpose of barter and sale, except that the tenant did sell them to appellee. The testimony of Jacobs that he kept them for use stands uncontradicted, and, so far as appears, these cattle and hogs were kept and used by Jacobs on the leased premises for the purpose of feeding and improving them in the way usual with stock raisers. The evidence that the cattle and hogs were kept for use being uncontradicted, and no evidence that they were kept for barter and sale, that part of the instruction quoted above was not applicable to the case, and certainly prejudicial to the appellant. This court has repeatedly held that the giving of an instruction not applicable to the case and prejudicial to either party is ground for reversal, even though the law be correctly stated.

2. Appellant further contends that said instruction is not a correct statement of the law. Code, § 2017, provides as follows: “A landlord shall have a lien for his rent upon all crops grown upon the demised premises, and upon any other personal property of the tenant which has been used upon the premises during the term, and...