Edwards v. Barnes ( 1894 )

Mr. Presiding Justice Boggs

delivebed the opinion of. THE CoUBT.

The action was replevin by appellee to recover possession of a Jersey cow. Judgment for appellee upon the verdict of a jury, from which this appeal. The appellant pleaded, among other defenses, property in his wife," and complains that the jury were erroneously instructed as to the law" in reference to the burden of proof upon that issue. The title of appellant’s wife was predicated on an alleged gift of the animal to her by her husband, the appellant. They were living together as husband and wife. The transfer was not evidenced by an instrument in writing, as required in such cases by Sec. 9, Chap. 68, R. S. It was against the rights and interest of the appellee, and therefore invalid as to her. I-Ience, the verdict as to this issue was right, and, being so, it is not material whether the instructions were correct or not. That the cow was the property of the appellee was abundantly shown by the evidence and was not seriously questioned. The appellant’s claim to the animal was that he had purchased her of the appellee’s husband. It was clearly shown that this sale to the appellant was without the consent and against the will of the appellee. It is, however, insisted that she ratified the sale, (1) by accepting the money, or a portion of the money received by her husband from appellant for the cow; (2) by accepting from the appellant a calf "which the cow dropped after the sale. The sale of the cow was made by the husband of appellee while he was in a drunken condition. He returned to their home after the sale, threw into her lap a part of the money received.for the cow, told her he had made the sale, went away and did not return for some days. • She kept the money until he came' back, when, at her request, he gave her a sufficient sum in addition to enable her to offer to return to appellant the purchase price of the cow. She testified that she did so offer to return the money, and that the appellant refused to accept the money or surrender the animal. No inference of ratification arises from these facts. The cow was carrying the calf when the contract was made between appellant and the husband of appellee. The appellant testified that he bought only the cow and was to surrender • the calf, when calved. The appellee claimed both cow and calf and sought to have both surrendered to her. Her right to the calf was not questioned and she took it away. Her claim to the cow was denied, and she brought the action to recover it. Certainly, the appellee, asserting ownership of both animals, could take possession of one if her right to it was not questioned, without prejudicing her claim to the other. We think the verdict right upon the merits and find no error so prejudicial to the appellant as to demand reversal of the judgment. The motion for a new trial upon the ground of newly discovered testimony was supported only by the affidavit of the appellant. The names of the witnesses by whom he expected to prove the alleged newly discovered facts were not disclosed, and the testimony, if producéd, would be but cumulative. It was not error to deny the motion. The judgment must be and is affirmed.