Edgerton v. Wolf

The refusal of the presiding judge to order separate trials is not relied on as a ground of exception, the matter being wholly within his discretion. Kimball v. Thompson, 4 Cush. 445. Commonwealth v. Robinson, 1 Gray, 560.

1. But the exception taken by Crafts to the admission of the declarations of Wolf in regard to the ownership of the property in controversy must be sustained. As the case was presented upon the evidence, the plaintiff had not shown any title in himself at any time, by any competent evidence, as against Crafts. The admissions of Wolf were competent evidence against him; but as against Crafts, it was necessary that the plaintiff should go further, and show, at least, that at some previous period he was the owner of the horse. The declarations of Wolf do not prove that fact, except against himself. The question is not *457upon the admission of the declarations of Wolf to qualify his title, or explain his possession; but upon the competency and sufficiency of such declarations to show affirmatively a title at any former period in the plaintiff. In the. view we take of this question, such declarations are only competent to rebut a title set up by or under the person making them, and not as affirmative evidence of title in the person who is thus stated to be the owner, as against a third party who denies that the plaintiff was ever the owner of the property.

2. The other exceptions present questions affecting both defendants. The rejection of the testimony offered to corroborate Dickerman was proper. It was merely evidence offered to corroborate a statement of Dickerman, the witness of the defendant, who had himself been called to contradict Hunter, the witness of the plaintiff. Dickerman had directly contradicted Hunter, and stated that the conversation testified to by Hunter was in reference to another exchange of horses. Evidence that there was such an exchange as stated by Dickerman did not show that Hunter had not stated truly Dickerman’s declarations, or that they were not made at the time stated by Hunter. I confirmed the statement of Dickerman that there was anothe exchange of horses; but that was a collateral fact, and would not justify calling other witnesses to show that fact.

3. The remaining exception is to the ruling of the court that if Wolf received the property of the plaintiff under a contract of sale, but afterwards voluntarily returned it to the plaintiff, intending to give up all his interest in it, and the plaintiff accepted it, such surrender would restore the title to the plaintiff, and Wolf could not afterwards lawfully retake the property and sell it. Looking at the precise state of facts as developed in this case, we have no doubt of the correctness of the ruling. Wclf, a minor, had, as he alleged, bought the horse of the plaintiff; but the contract was that of a minor, and so voidable at his election. This he might do as well against, as with the consent of the plaintiff. The case finds that he did thus voluntarily return the horse to the plaintiff, intending to give up all his interest in the property. The case is none the worse for the plaintiff, because *458he assented to this act of avoidance and return of the property by Wolf. The sale, which was voidable, was thus avoided by the infant, and all the rights of the vendor revested in him. Wolf had thus effectually availed himself of any privilege which attached to his minority, and the contract was no longer in force. With the surrender of the property to the plaintiff, intending to give up all his interest in it, he ceased to have any right over the property, and could not retake the same against the will of the plaintiff.

Exceptions sustained as to Grafts; overruled as to Wolf,