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WILSON V. HALEY LIVESTOCK CO., 153 U. S. 39 (1894)
U.S. Supreme Court
Wilson v. Haley Livestock Co., 153 U.S. 39 (1894)
Wilson v. Haley Livestock Company
Submitted March 30, 18934
Decided April 16, 1894
153 U.S. 39
A defendant who proceeds to introduce testimony after denial of his motion for a verdict in his favor on the close of the plaintiff's evidence in chief thereby waives his exception to that denial.
A count in trespass de bonis asportatis for the taking and detaining of personal property can only be supported on the theory that plaintiff was either its owner or entitled of right to its possession at the time of the trespass complained of.
In an action of trespass de bonis asportatis, the plaintiff cannot recover as upon a count for money had and received, at least without an amendment of the complaint.
Where a cause of action is not proven, not merely in some particular, but in its entire scope and meaning, the courts treat it not as a case of variance merely, but as an entire failure of proof.
This was an action by the Haley Livestock Company against Wilson and five others to recover damages for the forcible seizure on July 27, 1888, of 700 head of cattle and the extortion from the plaintiff of $12,725.50 as a condition precedent to the defendants' surrendering possession of the cattle to the plaintiff.
The answer of Wilson and Breeze, two of the defendants, denied the incorporation of the plaintiff, as well as all the allegations of the complaint, and set up in defense that Wilson, as Treasurer of Routt County, and Breeze, as his assistant, seized these cattle under a warrant for taxes for the year 1884 against one Ora Haley, by which warrant defendant Wilson was commanded to make the said sum of $12,725.50 out of the personal property of Haley, and by virtue whereof he distrained upon these cattle, and detained the same from July 27 to August 21, when Haley voluntarily paid the amount due. During this time, defendant Wilson was enjoined by Haley from selling them, and the cattle were properly cared for, and in better condition than when seized. A similar answer was filed by the other defendants.
Upon the trial, it appeared that articles of incorporation of the Haley Livestock Company, under the laws of Iowa, signed by Ora Haley and Samuel Hass, were filed for record in the county recorder's office of Pottawattamie County, Iowa, on July 24, 1888; in Carbon County, Wyoming, on July 30, and in Routt county, Colorado, on August 10, and in the office of the Secretary of State of Iowa on August 29, though nothing appears to have been filed in the office of the Secretary of State of Colorado. The articles provided for a capital stock of $300,000, divided into 3,000 shares; that the corporation should begin business on August 1, 1888, and that Haley should be superintendent and manager of the company.
The cattle were seized on July 27 and released on August 21 upon payment of $12,725.52. At this time, Wilson, as treasurer, executed the following receipt:
"Yampa, Routt Co., Colo. Aug. 21, 1888"
"Received of Wilson Rankin for Ora Haley a certified check of Frank X. Aicher on the German Notional Bank of Denver, Colorado. . . . This payment, it is understood, is paid in full settlement for the taxes of Ora Haley for the year 1884 under protest, and to release cattle now distrained for said taxes."
Haley testified that the Haley Livestock Company became the owner of these cattle about the 24th of July by purchase from one Timothy Kinney; that Haley organized the company with a capital stock of 3,000 shares, of which he owned 2,990, the remaining ten shares being owned by four others; that the consideration for the cattle "was somewhere near the capital stock of the corporation;" that he (Haley) originally owned the cattle, and had sold them to Kinney for about $300,000, taking his note and a chattel mortgage for the amount; that subsequent to this seizure Kinney brought suit in equity to enjoin the sale of the cattle for the taxes, upon the hearing of which suit both Haley and Kinney testified that the cattle were Kinney's property at the time of the seizure; that the sale to Kinney was bona fide, but that it was understood from the beginning that just as soon as the company was formed, it was to take the property, Haley being advised "that that was a better method to get a corporation, and have the property conveyed to it from a third party;" that the cattle were transferred to the company for the purpose of litigating the taxes in the federal court. Haley further testified that
"the minute the corporation had formed, and was in shape to acquire title to it, it was the understanding between Hass, Kinney, and myself that that property was to be the property of the Haley Livestock Company again."
"Q. Then the delivery was a mental operation, was it not?"
"A. Yes; I expect it was. "
"Q. You heard your affidavit read, made on the 4th of August, in which you testified that that property belonged to Timothy Kinney and was then in his possession. Was that true, or was it false?"
"A. Well, it was. He was one of the possessors. There had been no formal delivery of the property; only this understanding with the corporation."
It further appeared that about 1885, he obtained an injunction against the collection of this tax, which was dissolved; that he then obtained a second injunction, which was dissolved by the supreme court, and the suit dismissed, Breeze v. Haley, 10 Colo. 5; that he then obtained a third injunction, which was again dissolved, and the suit dismissed, Breeze v. Haley, 11 Colo. 351; that he thereafter obtained a fourth and a fifth injunction, both of which were dissolved by the District Court of Arapahoe county, Colorado; that he took one of these cases to the Supreme Court of the United States, Haley v. Breeze, 144 U. S. 130, and that he obtained a release of the cattle under all these injunctions except the last one.
The testimony of Wilson Rankin for the plaintiff was to the effect that he was in charge of the cattle at the time they were seized; that at the time of the payment, he demanded a receipt in the name of the Haley Livestock Company, which was refused, and a receipt taken in the name of Haley; that at the time of the seizure, he was working for Kinney, and knew nothing about the livestock company; that he got a check from Haley, and that the first time he ever mentioned to Wilson or anyone else the name of the company was when he asked for the receipt.
Defendants offered testimony tending to support the allegations of their answer, produced the tax roll in evidence, and showed that the livestock company was never heard of by them until the day the taxes were paid and the cattle released.
The court submitted to the jury the question whether the money was paid by the Haley Livestock Company or by Mr. Haley himself. The jury returned a verdict for $5,266.92, upon which judgment was entered, and defendants sued
out this writ of error, assigning as error certain questions arising upon the admission of testimony and the charge of the court.
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