Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-26

Action on promissory note. Defendants
pleaded, as a counter claim, that 1.-THE said
plaintiff had and received of these defendants
four steers, each of the age of three years, and
there and then of the just and full value of
$120, which said sum the plaintiff was owing
to these defendants at and before the COM
mencement of this action" This counter
claim is badly pleaded, for it does not show a
sale of the steers, nor how they were had and
received by plaintiff. No exception, however
was taken to it, and the defendants introduce
evidence that plaintiff had without their
consent, taken the steers from their possession
and sold them. There was no direct evidence
that plaintiff actually Re ceived anything on
such sale. nor for how much he sold them.
After the evidence was in plaintiff moved to
strike it out as incompetent, irrelevant and
lmmaterial, and because it tends to prove
claim for damages arising out of tort and not
counter claim. If the facts had been properly
pleaded, proof of them would have been rela-
vent and material, and the real ground of OBJ
jectlon is the absence of proper allegations in
the answer, and it was as apparent before as
after it was received where the objection is
thus apparent if the party makes no objection
to the evidence when offered it is discretionary
with the court to grant or refuse motion to
strike out. State VS.. Johnson %, Mimi. 500.
The question of variance may be raised after
the evidence is in, the party showing that he
has been misled by it, but the
question of variance was not raised.
1t does not appear that the discretion not
properly exercised.
The question upon which there is much di-
versity of decision whether when wrong
fully takes and appropriates the property of
another the owner may waive the tort and sue
in assumpsit upon an implied promise to pay
| the value is not raised by the evidence for the
| cases which restrict this right of election to
| the narrowest limits admit that if the wrong
doer has sold the property the owner may sue
as upon contract for the money received at the
| sale. In this case there was evidence of a sale
and where there has been a sale and there is nc
proof to the contrary the jury may presume
that it was for cash and for the value of the
property.
| Burnap VS.. Partridge 3, VT, 144.
| If a suit as upon contract could have been
sustained on the transaction it is proper mat
ter of counter claim in all action on contract
Judgment affirmed. GnFILLAN, G. j.
| Thomas Murphy, Respondent, as. Geo. C. Sher
man and Patrick Woods, Appellants.
| OPINION.
| This action in the nature of trespaSS d
bonis for unlawfully taking horse of plaintiff
which the defendants justify under writ o
attachment in favor of Woods against plaintiff
executed by defendant Sherman, a constable
The court below instructed the jury that no de
mand by plaintiff was necessary and that the,
should find verdict for plaintiff for the valu
OF the horse with interest from the time o
taking. In these instructions the cour
was right. There was no contro
versy as to the taking and the evidence to shoy
the horse exempt was clear and uncontradicted
and it was the only horse plaintiff owned. TIL
orig inal taking was therefore wrongful, and nj
demand was necessary. But appellants CLAIM
hot %hai 20 ,,I lo,,
tiff for the value Of the horse erroneous
because, as is claimed, Woods was not connect
ed with the taking, that there was evidence o
waiver of his exemption by plaintiff, whic
ought to have been left to the jury, and tina
the complaint claims damages only for the dc
tention. That Woods was plaintiff in the at
tachment would, of course, be of itself in
sufficient to charge him with al
unlawful taking under it. Blu
he testi6es, himself, that whel
on his execution issued upon the judgmen
rendered in the attachment suit, the defendan
Sherman sold the horse, he became the pun
chaser, Che then knowing as the special verde
finds, that it was exempt,) and that he after
wards sold the horse himself. The unlawful
act might be his either by his previously direct
ing, or subsequently rat1fying it, and his act
testified to by himself amount to a ratification
AS to the waiver of the exemption, the com
plant alleges that the taking was under tn
attachment, and that the property was exempt
The answer does not, as it ought to hive done
if defendants relied upon it for defense, allee
any waiver, so that it was not an issue in tn
pleadings, and there is nothing to show that o
the trial the parties consented to try it, q
though it were in issue. The mere admissio
| of the evidence tending to prove waiver doe
not show such consent, for that evidence We
admissible for another purpose. The appellant
cannot complain that the court in its charg
, did not give them the benefit of this evident
that they might have been entitled to unde
! proper issues.
The rule of damages laid down in the charg
is correct. The complaint claims damages as we
, for the taking the detention and the action
was tried on the theory that the value was I'll
a proper measure of damages. Both partie
5 without any objection. introduced evidence
the value, and 1T was the only evidence as
the damages.
Order affirmed. GuFILLAN, G.. j.