Cuerth v. Arbogast

136 P. 383, 48 Mont. 209, 1913 Mont. LEXIS 100

• Court: Montana Supreme Court
• Decided: November 7, 1913
• Docket: No. 3,295
• Status: Published

Opinion

MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

Action in claim and delivery to recover certain cattle or their value. Defendant appealed from an adverse judgment, and from an order denying him a new trial. The plaintiffs claim that they owned the cattle in dispute, and let them to one John D. Busch under an agreement which amounted to a bailment, with an option to Busch to purchase. The defendant alleges that he purchased the cattle from Busch while he was in possession of them, and for their fair value, without notice of any outstanding claim.

1. Plaintiff Henry Cuerth testified that Busch came to him a stranger, and that, upon the security of $300 left with him, he permitted Busch to take fifty head of cattle, valued at $1,400, forty [1] or fifty miles away under an agreement to keep them for three months, and to purchase them if Busch had the money to make payment. Upon cross-examination he was asked if he made any investigation as to Busch’s standing or character. This was excluded as not proper cross-examination, and incompetent and immaterial. The witness had given his version of his transaction with Busch. Whether it amounted to an absolute sale, a conditional sale, an agreement to sell, or a mere bailment with an option to purchase, depended upon the truth of Cuerth’s statements. It was a vital question, and any evidence, otherwise proper, which would reflect upon the probability of the story should have been received. The jury might have concluded properly that, if Cuerth did not make any inquiry into Busch’s liability, it was because he then treated the transaction as a sale. In any event,, the inquiry was proper, and the ruling erroneous.

2. Mrs. Cuerth, who claims to be interested in these cattle, testified on her direct examination to the negotiations between her [2, 3] husband and Busch, and that a sale to Busch was not made. On cross-examination the details of the transaction were sought; but practically every effort on the part of counsel for defendant to ascertain the facts was met by an objection that it was not cross-examination, and these objections were sustained. In fact, the rulings amounted practically to a denial of the right to cross-examine the witness. While it is the general rule that cross-examination must be confined to the material matters brought out on direct examination or connected therewith (sec. 8021, Rev. Codes; Pelican v. Mutual Life Ins. Co., 44 Mont. 277, 119 Pac. 778; Borden v. Lynch, 34 Mont. 503, 87 Pac. 609), and that mere excursions into matters foreign to the subject considered on direct examination will not be permitted, still the section above is to be liberally construed, and the general rule extended, rather than restricted. (Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805; Hefferlin v. Karlman, 30 Mont. 348, 76 Pac. 757; Knuckey v. Butte Electric R. Co., 45 Mont. 106, 122 Pac. 280.) The declaration of this court upon the subject was tersely made in Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884, as follows: “Section 3376, Code of Civil Procedure [8021, Rev. Codes] permits a wide range for cross-examination, and the courts should incline to extend, rather than to restrict, the right. Properly understood, the right extends, not only to all facts stated by the witness in his original examination, but to all other facts connected with them whether directly or indirectly, which tend to enlighten the jury upon the question in controversy.” In State v. Biggs, 45 Mont. 400, 123 Pac. 410, this was repeated, and in addition thereto we said: 1 ‘ The rule necessarily includes questions, the purpose of which is to bring out facts illustrative of the motives, bias and interest of the witness, of as reflecting upon his capacity and memory. The right would be of little value if inquiry into these matters were not permitted.”

3. Defendant offered in evidence the cheeks which he had given for these cattle when he purchased them from Busch; but upon objection they were excluded, and erroneously so. In an attempted defense of the rulings, counsel for plaintiffs [4, 5] contends that, by failing to reply to the affirmative matter set forth in the answer, the purchase from and the payment to Busch were admitted; but with this we do not agree. The so-called affirmative matter amounted only to an argumentative denial of plaintiffs’ title, and everything which could be proved under it could likewise be proved under a general denial. (Kaufman v. Cooper, 38 Mont. 6, 98 Pac. 504, 1135; Hickey v. Breen, 40 Mont. 368, 20 Ann. Cas. 429, 106 Pac. 881.) Defendant was entitled to show that he purchased the animals from Busch, and to offer the best evidence he had of that fact.

4. The trial court erred also in excluding defendant’s offer in evidence of the note given by Busch to Fruchtbar, and a [6] chattel mortgage upon these same cattle to secure the debt evidenced by that note. The mortgage was duly filed for record in Chouteau county, the home of these plaintiffs, on June 23, within two weeks at most from the day upon which they had given the cattle into Busch’s possession, and remained of record uncanceled on July 30, when the defendant alleges that he purchased the cattle from Busch, who was then in possession of them. The evidence was competent for the purpose of re-enforcing the presumptions which the Codes declare: “8. That a thing delivered by one to another belonged to the latter. * * * 11. That things which a person possesses are owned by him. 12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership.” (Rev. Codes, sec. 7962.)

5. At the time these transactions between plaintiffs and Busch and between Busch and the defendant occurred, section 5092, Revised Codes, was in force, as.follows: “All contracts, notes and instruments for the transfer or sale of personal prop-[7] erty where the title is stipulated to remain in the vendor until the payment of the purchase price, or some part thereof, shall be in writing, and the original or a true copy thereof certified by the county clerk and recorder shall be filed with the county clerk and recorder of the county wherein the property is situate, otherwise any such contract, note or instrument is void as to a purchaser or mortgagee of such property prior to such filing.” The trial court should have defined an agreement to sell and should have instructed the jury that, if they found that the transaction between plaintiffs and Busch amounted to such an agreement, and further found that defendant purchased the property from Busch while in his possession, then their verdict should be for the defendant, for it is uneontroverted in the evidence that there was not any contract reduced to writing, or any contract filed as required by section 5092 above.

6. The trial court instructed the jury “that a brand duly recorded with the recorder of marks and brands of this state is [8] prima facie evidence of the ownership of an animal bearing such brand; in other words, that the owner of a duly recorded mark or brand is prima facie the owner of an animal bearing such brand. ” Counsel for respondents contends that the instruction is justified by the rules of the common law, as well as by sections 1791 and 1793, Revised Codes, and cites Queen v. Forsythe, 2 N. W. Ter. 398, 4 Territories L. R. 398, wherein it was held, by a divided court, that proof that an animal bore John Lawrence’s mark and brand, that it was a steer three years old, and that Lawrence had not sold or otherwise disposed of locally any steers, was sufficient proof of ownership to sustain a conviction for larceny. Nothing whatever is said by the court of any rule of the common law, and no authority whatever is cited for the holding • but much emphasis is laid upon the fact that identification of cattle by brands is a common custom in that territory. Upon a somewhat similar state of facts the like conclusion was reached by the supreme court of Oklahoma, in Hurst v. Territory, 16 Okl. 600, 86 Pac. 280, and in State v. Cardelli, 19 Nev. 319, 10 Pac. 433; but in neither of these last two eases is there any mention made of a rule of the common law, and in neither is it asserted that a brand, or the record of a brand, is prima facie evidence of the ownership of the animal which bears the brand. We are satisfied that authority for the trial court’s action based upon a rule of the common law cannot be found, and that such rule was never enforced except by virtue of some statute which promulgated the rule.

In State v. Keeland, 39 Mont. 506, 104 Pac. 513, and again in State v. Trosper, 41 Mont. 442, 109 Pac. 858, this court treated the brand upon an animal as evidence tending to identify the animal, and to show ownership in the one who owned the brand; while in State v. De Wolfe, 29 Mont. 415, 74 Pac. 1084, we said: “The fact that the O L brand belonged to Houk, and that the horses bore such brand, was not proof that they belonged to Houk at the time they were driven away, or that defendant was not rightfully in possession of them.” In other words, we have-said that the brand upon an animal is a circumstance to be considered with others as tending to show ownership, but in itself insufficient to prove ownership. (Territory v. Harrington (N. M.), 121 Pac. 613.)

It is doubtless true that in the early days, when the livestock industry was of commanding importance in this western country, common custom decreed that ownership of range animals should be determined by the brand, and that controversies over livestock should be settled by tribunals created by the owners of the herds; but, just as the jueces del campo gave way to legally constituted tribunals, so the rules and customs of the plains were superseded by positive legislative enactments. In probably every western state mark and brand laws have been enacted, and provision made for records. In many instances the statute declares in language unmistakable in its meaning that a recorded brand or the certificate from the recorder shall be prima facie evidence that the person who owns the brand owns the animal which bears the brand (N. M. Comp. Laws 1897, sec. 67; Colo. Gen Stats. 1883, sec. 3174; Idaho Rev. Stats., sec. 1179; Nev. Gen. Stats. 1885, sec. 761; Cal. Pol. Code, sec. 3172; Or. Laws 1893, p. 52; Ordinances N. W. Ter. [Can.] 1900, p. 42); but this is not true in all the western states. In Utah the statute merely provides that the recorder’s certificate “shall be deemed evidence in law.” (Utah Comp. Stats. 1897, see. 39.) In 1887 the Arizona statute made the brand upon an animal pi'ima facie evidence that the animal belonged to the owner of the brand (Ariz. Rev. Stats. 1887, sec. 2788) ; but this was repealed, so far as the rule was applicable to civil eases, in the compilation of the laws with reference to livestock, approved March 1, 1897, which declares that the certificate of the recorded brand “shall be competent evidence of the registration of such brand, and prima facie evidence of ownership.” (Ariz. Laws 1897, p. 25, sec. 50.) In Brill v. Christy, 7 Ariz. 217, 63 Pac. 757, there was involved the ownership of certain cattle. A certificate of the record of the brand was offered in evidence for the purpose of showing prima facie title in defendant, whose brand the cattle bore. The court, after quoting section 50 of the Act of 1897 above, said: “If the ownership of the brand or the fact of its registration was in controversy, the provision quoted would be applicable. * * * Neither is the registration of the brand an issue in the case. Section 50 applies solely to the requirement for and the manner of the registration of brands, the proper evidence of such registration, and the ownership of the brands thus registered, and does not deal with the cattle that may be in such brands, the mode of their transfer, or the evidence of their ownership. # ® * While, therefore, section 50 of the said Act constitutes the certificate of the registration of a brand competent evidence of such registration, and prima, facie evidence of the ownership of such brand, it does not make such certificate either competent or prima facie evidence for any other purpose.

The history of our own statute furnishes some insight into the legislative intention in passing it. By an Act approved January 10, 1872, provision was made for recording marks and brands, and for certificates to be delivered to the owners. Section 4 provided that such “certificates shall be deemed evidence in law.” The same Act required that upon á sale of branded livestock the brand should be vented, and section 8 declared: “The venting of said original brand shall be prima facie evidence of sale or transfer of said animal or animals.” These provisions were carried into the compilations of 1871-72, 1879, and 1887, without change, and were the law up to the adoption of the Codes in 1895. As the Political Code was reported, and as it first passed the House of Representatives, it contained, in lieu of the two sections above, first, a provision that a certified copy of the record of the brand shall be “prima facie evidence of the ownership of the brand,” and, second, that “the venting or counterbranding is prima facie evidence of sale. ’ ’ In the Senate these provisions were stricken out, and in lieu thereof the language as found in the Codes to-day was substituted. These amendments were concurred in, and the Act thus amended became the law which went into effect July 1, 1895, and provided that the general recorder of marks and brands must “furnish to the owners of recorded brands a certified copy of the record of the same, which certificates are prima facie evidence of the ownership of the brand or mark so recorded” (Pol. Code 1895, sec. 2941), and “every person who sells * * * cattle, must vent or counterbrand such animals, * * * and the venting of said original brand shall be prima facie evidence of sale or transfer of said animal or animals so vented.” (Pol. Code 1895, see. 2943.) These provisions were carried into the Revised Codes of 1907, and are found in sections 1791 and 1793, respectively. It will thus be seen that, through all the changes which have occurred in our livestock statute since 1872 the legislature, while asserting repeatedly that a vented brand is prima facie evidence of a sale of the animal bearing the brand, has studiously declined to say that the brand on an animal or a certificate of a recorded brand shall be prima facie evidence of ownership of the animal bearing the brand. On the contrary, while there may have been room for doubt as to the meaning of the original statute, which declared that the recorded certificate “shall be deemed evidence in law,” the legislature which enacted the Codes declined to approve the somewhat equivocal terms employed by the Code commissioners, but cleared away all uncertainty by declaring, in language whose meaning cannot be questioned, that the certificate of a recorded brand “is prima facie evidence of the ownership of the mark or brand so recorded. ’ ’ Other state legislative bodies have had no difficulty in making a recorded brand, or a certificate of such brand, prima facie evidence of ownership of the animal bearing the brand, and doubtless our assemblies could have done equally as well if they had chosen to do so; but their refusal to adopt a statute similar to those in force in sister states where conditions are similar, and their final adoption of the statute in its present form, furnish most persuasive evidence that it has been the policy of this state to go no further than to recognize a brand as evidence, just as a flesh mark or other distinguishing mark or characteristic is [9] evidence. The purpose of the statute is to secure to anyone who records his brand the exclusive use of the design adopted (Stewart v. Hunter, 16 Or. 62, 8 Am. St. Rep. 267, 16 Pac. 876), and the object sought in requiring a brand to be vented is to foreclose the vendor’s claim to the animal sold (Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135). The instruction given is erroneous. It provides a rule of evidence not warranted by statute or the common law.

7. Counsel for appellant requested the trial court to include in an instruction the provisions of subdivisions 8, 11, and 12 of [10] section 7962 above; but the request was denied. It is not commendable practice to submit to jurors abstract rules of law, even though they are correct, and error cannot be predicated upon the action of the court in refusing defendant’s request in this instance. (First Nat. Bank of Portland v. Carroll, 35 Mont. 302, 88 Pac. 1012.) If a concrete application of the rules to the facts of this ease had been made, it would have been reversible error to refuse to submit the instruction.

■Since this cause must be remanded for a new trial, the attention of counsel is directed to the fact that the verdict returned upon the trial of this case does not respond to all the material [11] issues tried, and is insufficient to sustain a judgment. (Hickey v. Breen, above.)

The judgment and order are reversed, and the cause is remanded for a new trial.

Reversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.