Schaff & Co. v. First National Bank of Holdenville

The appellants have filed four specifications of error, as follows: “(1) The court below erred in overruling defendant's motion for a new trial because the verdict of the jury was contrary to the evidence. (2) The court erred in overruling defendant's motion for new trial because the verdict of the jury was excessive and not warranted by the testimony. (3) The court erred in refusing the following instruction asked by the defendant: ‘You are instructed that, under the evidence, the plaintiff could not recover the calves sued for; the mortgage under which the plaintiff claims showing that all the cattle covered by it were branded, and the evidence in this case showing that the calves taken under the writ of replevin were not branded.' (4) The court erred in refusing the defendant the following instruction asked for by the defendant: ‘If you believe from the evidence that any of the cattle taken under the writ of replevin in tins case were branded Block T, as to all such cattle you will find for the defendant.’ ”

The first two specifications are the alleged errors of the jury, first, because the verdict was contrary to the evidence; and, second, because the verdict was excessive and not warranted by the testimony. The third and fourth specifications are the alleged errors of the court in refusing instructions requested by defendants.

Appellants state, as the result of their discussion of the evidence in the case, as follows: “Now, under what we consider the strictly undisputed evidence in the case, there was 1 cow and 15 head of calves that should have been given to the defendants in this case, or, to state it differently, should not have been given in the verdict to the plaintiffs.” On page 2 of their brief they state the trial' resulted “in a verdict for the plaintiff for all the cattle sued for.” It appears that this statement is incorrect, for the plaintiff sued for 27 cows, and only recovered a verdict for *14326 cows. The evidence of Kistler, attorney, is that they got one cow branded “T Box” on the hip, which was the only cow among the 27 taken by Fleming, deputy marshal, that had that brand. Is it not, therefore, probable, by reason of that fact, that the jury gave their verdict for 26 cows, instead of 27, as sued for? In regard to the calves, Schaff, one of-the appellants, testified “that fifteen of the calves were branded T Box,” and eleven with no brand at all; and Kistler testified as, follows in regard to said calves: “Q. The twenty head of calves that you got, you took them on the theory that they belonged to the H A cows? A. Yes, sir. Q. If you had not seen them with the cows, you could not have told them from the other calves in this bunch, could you? A. No, sir; there were some calves in there’ that were branded — larger calves. These, I guess, were spring calves. Q. There’were quite a number of spring calves in this bunch that you couldn’t tell apart? A. We couldn’t tell those calves, except for the mothers. Q. Speaking of those you couldn’t tell apart, did you get any of those? Mr. Hutchings: I meant tell apart from those he got. The Witness: The only way we could ever tell those calves, and the only way we did tell them, was by getting the mother, and the calf would follow the mother.” And the same witness, being recalled, testified on that same subject as follows: “E. L. Kistler, recalled on behalf of the plaintiff, testified as follows. Mr. Horton: Q. Do you remember whether any oi those 20 calves were branded? A. No, sir; if there were any brands at all on those calves, they were on the opposite side. We looked in every instance, I believe, for a brand on the left side, and we found none whatever on any of those calves.” Fleming/ the deputy marshal, being recalled by plaintiff, testified in regard to those calves as follows: “Court Fleming, recalled on behalf of the plaintiff, testified as follows: Mr. Horton: Q. Did any of those calves have a brand on them? A. I didn't see any.” Appellants, in referring to the testimony of these two witnesses in their brief, when they were recalled, *144state “they did not'remember whether any of these 20 calves were branded.” This is an inaccurate statement as to their testimony. It thus appears that the calves selected were those following their mothers, which were branded H. A. Miss In a Oldham, owner of the T Box brand, testified “that 65 of her spring calves were branded Box T, but that none of the calves belonging to L. H. Adair (the mortgagor) were branded.” Both mortgages provided, in their description of the cattle — the same being: “(27) twenty-seven cows, 3 to 8 year old. (20) twenty calves, this year’s. (37) thirty-seven steers, 2 and 3 years old. Cattle are all branded ‘H A’ ” — as follows: “Also especially covering and including all increase of the above-described stock.”

The only question really involved in this ease is whether the evidence supported the verdict. The appellants have not discussed their third assignment, as, under the mortgages, the increase is covered by them, as well as those described as branded. The mortgages were dated March 1, 1901, and August 24, 1901, and Mr. McFarlan, one of the appellants, testified as follows: “That about one-third of the calves in the bunch he mentioned -were one-third early, one-third summer and one-third fall calves —'most of them little bits of baby calves.’ ” Mr. Kistler also testified in regard to the selection of said calves as follows: “The calves were following the cows. Matt Withers came out there, and he said in one or two instances that: “This calf dont go. That is not one of the calves.’ And every time he did that, we would cut the cow out, and drive her off, to see if the calf would follow, and the calf would follow in every instance where we took the calf.”

It is perfectly evident that there was much evidence to support the finding of the jury, and where such is the case an appellate court will not disturb the verdict. It is therefore our opinion that the judgment of the court below should be affirmed.