Ham v. Boody

The evidence in this case does not tend to prove any of the causes of action stated in the declaration. As to the first count, the only evidence which has any tendency to show that the defendant had any sheep under a contract with any body, is contained in his answer to Mrs. Watson when she made the first demand. He then said that the sheep “ had been there but three years, and *29that they were to remain a year longer.” Upon this evidence, the demand was premature, and that is a sufficient answer to it. His language seems to admit—or at least does not deny—that Mrs. Watson was an agent for somebody; and she does not seem to have made the demand on her own account; but he might safely admit that she was the plaintiffs’ agent, pro hac vice, as he had a good answer to the demand without taking that objection. But there is, in fact, thus far no evidence that the sheep belonged to the plaintiffs.

When Mrs. Watson made the second demand, she did not show the defendant that she had any authority to act for the plaintiffs. His objection was that a delivery of the sheep to her would not preclude the plaintiffs from calling on him again for them ; and this is, in substance, an objection that she was not authorized to receive them. This objection was sufficient; for he was not bound to deliver them to any person who chose to call himself the plaintiffs’ agent, but who produced no authority to act in that capacity. This remark of his is the only evidence that tends to prove that the sheep belonged to the plaintiffs, and there is nothing at all which shows what was their number.

The remarks we have made will apply to all the counts, for upon these facts the plaintiffs cannot recover, in whatever manner they may state their case.

Verdict set aside.