The record-union., 1891-01-20
SUPREME COURT DECISIONS.
Filled January a. lSa

lriSu Jtiiitafy q, 1891
appeal from the Superior Court of Tuolumne
County,. F. Rooney, Judge.
For appellants, James ii. Budd, F. D. and G..
For respondent, F. W. Street, E. A. Rodgers,
IN BANK
JANE ANN CLAvEY. ADMINIs-l
TRATRIx, EFT AL, Appellants, NJ
JOSEPH LORD, Respondent.
The first count of the complaint in this
action alleges that the decedent, in his life
tlme, verbally contracted with the defendant
10 deiiVer TO the latter Q large number of stock
cattle, which the defendant was to herd past
ure, feed and care for; in consideration of
which the defendant was TO have one-half of
the increase of said cattle, but was to return.
or account to the decedent for, all the cattle
originally delivered and one-haif the increase,
at the expiration of the contract. The con-
tract did not fix or state the time during
which the defendant was to keep the cattle,
but 1t is alleged that he kept them until Will
lam Clavey died-June 25, 1855. Nor is the
date of the contract alleged, but it appears
that 1t was made in 1875.
1t is further alleged. on information and be-
lief, that the deceased delivered to the defend
ant, under the contract, about 1i0 head of
stock cattle" which defendant kept according
to the contract; and .that the increase of said
cattle, while in possession OF the defendant
under SAID contract, amounted to many hun
dreds."
1t is further alleged. on information and be-
lief that during the lifetime of VIM. Clavey
there was no accounting between him and de-
iendant in regard to the cattle; and that no ac-
counting or settlement has been made be-
tween plaintiffs and defendant in regard to the
cattle since the death of VIM. Clavey.
In the second count it is alleged. on Informal
ton and belief, that during the lifetime of the
deceased he and defendant entered into II
verbal contract, "by the terms of which they
were to purchase large tracts of land in Tuol-
ulnne county. the same to be held by them in
common" That under said contract s.Clavey
furnished 10 defendant large sums of money
with which to purchase and pay for his (Cla-
veys) interest in the aforesaid Ia!id:'' and that
defendant. with said money, and money of
his own, ard under said agreement did pur-
chase large tracts of land, the deeds and con-
y,eyances of which were taken in the name of
defendant and in trust, however, for the joint
benefit of himself and said Clavey, each of
whom owned an undivided half thereof"
That the defendant still holds the title to said
lands and refuses to account to plaintiffs
therefor or for the rents and profits of the land,
or for the money invested therein by Clavey,
and refuses to make any statement of his trust
manded by plaintiffs"
The prayer of the complaint is: First, that
defendant account for the cattle under the
contract first alleged; and second, that he ac-
count for all money received by him for the
purchase of land underline contract alleged in
the second count, and for all lands purchased
Herewith, and for the rents and profits
thereof.
The answer of the defendant admits n con-
tract in regard to the cattle. but with the ad-
ulIlOlli terms Itl:t the defendant was author
lied to deal with sell and dispose of, the cattle
and the increase rs his own, during the time
lie should keep them, and account to Clavey
for the proceeds of such sales; and that de
fendant was not to be liable for loss of cattle
by death or otherwise: and also, that defend
ant was to hold said cattle as security for all
debts due the defendant from Clavey. And
denies that Ciavey delivered to defendant
more than seyenty-seven head of cattle under
the contract. Denies that there had been no
accounting and settlement with Clavey and
IL
he had accounted to- and settled with, Clavcy,
during his lifetime, all matters pertaining to
the cattle contract, and that in March, 1887,
he had accounted and settled with the plain
tifls for all the cattle and increase thereon that
remained in his possession after the death Of
Clayey.
The answer also denies all the materiai allie
cations of the second count.
Twenty-Five special issues, framed by coun-
sci for the respective parties, were submitted
by the court to a jury, and on April z, 1SSS,
the jury returned verdict in favor of the
plaintiffs upon all the issues except one as TO
which the jury failed to agree.
Thereupon each party asked for judgment
on the special verdict; but no further action
appears to have been taken by court or coun-
sci until July Ii, 1SSS, when defendants
counsel asked permission to introduce further
evidence. which was allowed by the court
against the objection Of plaintiffs counsel.
After hearing the additional evidence the
court set aside the special verdict, and upon
all the. evidence made written findings in
accordingly.
The plaintiffs appeal from the judgment and
from an order denying their motion for u new
trial.
The court found the cattle contract to have
been as stated in defendants answer and that
defendant received only seventy-seven head of
cattle under the contract; and further found
in regard to the cattle transaction. as follows
''6. That during the lifetime of said Clavey,
defendant and said Clayey had frequent settle
ments and accountings in regard to the cattle
so received, and the increase thereof and that
at each of said settlements defendant fully
settled with said Clayey for all of the cattle
sold and the increase of said cattle.
~. That on or about the 10th day of
March, 1887, defendant delivered to plaintiffs
herein, the adnlinistratrix and administrator
of the estate of the said William Clayey de-
ceased, all of the cattle that remained in de-
fendant's possession, whether the same were
original stock cattle or the increase OF said
stock cattle, and the plaintiffs herein received
the same.
rs. That at the time of the commencement
of this action defendant did not have in his
possession any of the original stock cattle re-
ceived from William Clavey, nor any of the
increase of the original stock cattle so received
nor any OF the proceeds of the sale of said
cattle or the increase thereof, but had fully
accounted TO said Clayey during his lifetime
for the increase of said cattle and the proceeds
from the sale Of the same. and had turned over
to said plaintiffs all of the cattle that they
We're entitled to receive under the terms OF said
contract"
Upon all the issues in the second count the
court found in favor of defendant.
j. Many ofthe findings are attacked on the
ground that they are not justified by the evil
dence. But think all the findings, except
that as TO the number of cattle delivered
to defendant under the contract, are stis-
tained by 81 preponderance Of evidence; and
the finding as to the number of cattle delivered
is supported by the positive testimony of the
defendant and of the witness, Richards, op-
posed to the positive testimony of John Loney
and the rather indefinite testimony of McFar-
land for the plaintiffs, There was an attempt
by each party 10 discredit the witnesses of the
other us TO the number of cattle; but there is
nothing in tho record from which 1t can be
seen or determined here that the court did not
Justly estimate the crcdibility of the Witnesses
Besides, if the sixth, seventh and eighth find
lngs, as TO settlements with the deceased and
plaintiffs, are justified by the evidence, rs
think they are, they are controlling and rem
der the issue as to the number OF cattle iinlna-
teral.
2. 1t is insisted by appellants that the court
erred in hearing additional evidence three
months after the verdict of the jury was rem
dered, and in disregarding the verdict of TIE
jury.
When the verdict was rendered each party
moved for judgment upon it, aud il does not
appear why the court did not further act in
the case until three months thereafter: vet it
does not appear that the delay was objected to
by the appellants.
If the court disagreed with the verdict of
the jury there should be no question that it
had the power TO disregard and set it aside of
its own motion, since, until adopted by the
court, 1t was only advisory, johnson vs.
Powers, 65 Cal. 10; Sweetser VS.. Dobbin Ill.
529 and other cases)
The Only remaining question under this
head is whether the court erred In permitting
the defendant TO introduce further evidence
without showing cause therefor by affidavit.
1t was undoubtedly within the discretionary
power of the court TO permit further evidence
under the circumstances disclosed by the
record. CFoote VS.. Richmond. 42 Cal. AL;
Barry VS.. Bennett, 45 Cal. so; Keyes VS.. War
ner. 40 Cal. 60; Homestead Association VS..
Willard, AZ Cal. 615; Cousins VS.. Partridge,
79 Cal. 224; First National Bank VS. Wolff,
70 Cal. 1o.l And no abuse of that pewer APP
duce additional evidence without any appar-
ent restriction, and both parties did introduce
additional evidence There iS NO cc,, lot,