[Download] "Smith v. Armstrong" by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: Smith v. Armstrong
- Author : Supreme Court of Montana
- Release Date : January 24, 1946
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 58 KB
Description
1. Property ? Presumption of ownership not applicable. The statutory presumption of ownership based on possession did not apply in this case in the face of the established fact that the owner of the horses had left them with Galbreath for the purpose of sale or if they could not be sold they were to be used for breeding purposes. 2. Trial ? Pleading of Estoppel should have been stricken. In action for conversion of horses claimed to be owned by the plaintiff and which were alleged to have been taken by the defendant - Page 291 as sheriff, an affirmative defense based on doctrine of estoppel should be stricken from the pleadings on the plaintiffs motion or at least an instruction should be given to jury to disregard such defense if the defendant should not support defense with proof. 3. Sheriffs and constables ? Intervention by mortgages allowed. Allowing mortgagees to intervene was not error where the mortgagees, at whose request the horses were seized, claimed to be interested in the defendants success on the ground that they delivered to the Sheriff their indemnity bond. 4. Evidence ? Testimony as to value allowed. Refusal to permit plaintiff to give his opinion of the value of the horses he identified as his was error. 5. Witnesses ? Testimony that horses were not listed for tax is admissable. Admitting evidence, over plaintiffs objection, that plaintiff never listed horses for taxes, was not error, since evidence though immaterial on question of ownership was material as affecting plaintiffs credibility in that by not listing the horses for taxation he made at least by implication a statement that he was not owner contrary to his testimony. 6. Sheriffs and constables ? Instruction on Exemplary damages not warranted. An instruction on exemplary damages was not warranted where it was established that the defendant acted in good faith, honestly believing that he had a right to take the horses. 7. Animals ? Instruction on unrecorded brand held not error. Instruction that an unrecorded brand is not regarded as proof of ownership of horses bearing brand, since unregistered brand is merely a means of identifying a horse and question of who owns a horse bearing an unregistered brand must be determined from other evidence, was not error. 8. Evidence ? Statement of agent not a conclusion. Plaintiffs agent who had possession of the horses should have been permitted to answer question whether he knew according to his own knowledge to whom horses belonged, since answer would have been a statement of fact and not a conclusion. 9. Pleading ? Court properly allowed amendment of verification. Where verifications in reply and answer to complaint of intervention made by attorney were to the effect that the allegations and matters contained therein were true to his own knowledge except as to those matters stated on information and belief, and to those matters he believed it to be true, court properly denied motion to strike and properly granted plaintiff leave to file amended verifications. 10. Confusion of goods ? Doctrine not applicable to horses. Doctrine of confusion of goods does not ordinarily apply to horses or other similar property that can be readily identified. 11. Sheriffs and constables ? Burden of Proof of identification ? Confusion of goods doctrine need not be pleaded. Where defendant claimed that horses were comingled with those of debtor in whose possession horses were seized, plaintiff had burden of identifying the horses he claimed and denying defendants motion to amend answer so as to plead the doctrine of confusion of goods was not error, since the doctrine as applied to the facts was merely one of evidence and defendants could take advantage thereof by questioning the sufficiency of plaintiffs proof to identify the horses in, question. - Page 292