Howlett v. Stockyards National Bank

188 N.W. 172, 48 N.D. 933, 1922 N.D. LEXIS 119

• Court: North Dakota Supreme Court
• Decided: April 27, 1922
• Status: Published

Opinions

Robinson, J.

This is an appeal from a judgment against defendants for $400 for the wrongful taking and conversion of four good, well-bred, heavy cream dairy cows. The plaintiff swore positively and convincingly that she had owned the animals, and that she had raised them from one calf which she bought for $7 from Rouis Sundahl at V.alley City. She testifies she knew what the animals were worth; that the cows were worth about $100 apiece and the calf $10. Defendants-took the same after she had warned them of her title and took them under a mortgage which did not in any manner describe the animals. Her testimony is well corroborated. Martin McGuire saw her buy the calf, knew her cow's, knew she owned them. Defendants took the animals, claiming them under a chattel mortgage made by D. N. Howlett on 37 head of cattle, and not describing any of the animals.

Defendants assign numerous errors, but it appears that the defend- ' ants did have a fair trial, and that the verdict is well sustained by the evidence. In a recent case this court failed to note or discuss any of 50 errors assigned. We held thus:

“As the verdict is clearly right, there is no occasion for a discussion of the testimony or the assignment of errors.” Johnson Co. v. Hildreth, 185 N. W. 812.

Counsel except to the charge of the court because it is not more extensive and does not fairly cover all the law and the points in the case. But the case was very simple, and counsel did not ask for special instructions. Counsel object that the court did not instruct the jury as to the law of estoppel and waiver; but there is no plea of estoppel or waiver, nor is there any sufficient evidence to sustain the same. It is said: The court failed to instruct the jury that their verdict must be limited to the reasonable market value of the property. But market value is not controlling in a case where a party wrongfully takes from a woman her pet animals that she has raised, fondled, caressed, and recognized with pride and affection. The verdict might well have been for a much greater sum. The jury might have given exemplary damages.

A motion for a new trial was made on the ground of newly discovered evidence tending to show that the plaintiff did not speak the truth when she testified that she was married to the man whose name she bore and with whom she had lived as a wife for 13 years. It is enough to say that the marriage was not and it cannot be made an issue in the case. It is immaterial.

The defendants have had a fair trial; the verdict.is commendable.

Judgment affirmed.

Grace, C. J. I concur in the affirmance of the judgment and of the order denying a new trial.