Sawyer v. Kenan , 95 Ga. 552 ( 1895 )

Judgment reversed.

For defendant the testimony was in brief: Frank Sawyer had nothing to do with the marking of Kenan’s calves. He told Kenan that a mistake had been made in marking in 1888, and that one of his calves and one of Mrs. Wylly’s had been marked; and offered to settle with him for the same; the other was settled for with Mrs. Wylly. Frank Sawyer was agent for defendant. He shipped calves to Savannah in 1886, and got $6 a head for them;, they are worth from five to six dollars a head. He did not ship any of Kenan’s cattle, does not know of that having been done, and does not know what calves Kenan claims. Defendant was at the north during the time. Frank Sawyer never took possession of Kenan’s calves; if he had, he would have known it in separating the calves from their mothers. He did not tell Kenan that he marked six and would give two for one. Jim Green assisted in marking Sawyer’s cattle in 1888, and did not know of the marking of Kenan’s calves, but heard Frank Sawyer make the statement to Kenan testified to by Sawyer. It was in the spring of 1888. Green superintended the marking of Sawyer’s cattle that year, and was present whenever cattle were shipped to Savannah. They always penned before shipping, and could have told if they had shipped any of Kenan’s. The calves would try to follow the mothers, and it would be difficult to separate them, and when in pen, would bellow for their mothers. Defendant’s cattle often ranged on Mrs. Spalding’s pasture. Kenan’s pasture is between Mrs. Spalding’s and that of defendant, and the public road runs through Kenan’s pasture. There is no fence between Mrs. Spalding’s pasture and that of Kenan, and wherever the fence between Kenan and Sawyer crossed the public road there were gates placed. In driving defendant’s cattle from Mrs. Spalding’s pasture, having to pass through Kenan’s land to reach defendant’s, there was some difficulty in driving through, the cattle separating. To the knowledge of Roberts, a witness who helped to drive the cattle, none of Kenan’s were marked, and he would have known whether they had any of Kenan’s. In shipping, Roberts put the last calf aboard belonging to Sawyer. In driving through, all the calves with Sawyer’s mark were gathered up. Roberts shipped all the calves himself in 1888 and 1889, and they were all in Sawyer’s mark. Whenever Sawyer drove cattle, Jacob Green minded the gate between Sawyer’s and Kenan’s pastures to see that cattle belonging to any one else did not come in, and did not see any belonging to Kenan. Frank Sawyer does not know what became of the calf of Kenan, which had been marked with defendant’s mark, and did not take possession of it.

W. deR. Barclay and W. G. Charlton, for plaintiff in error. Lester & Ravenel, C. L. Livingston and Gignilliat & Stubbs, contra. .