The Hawaiian gazette., 1907-10-22
WHAT WAS THE
HORSES COLOR?

A written opinion was filed yesterday
in the SUPREME Court in a case pre-
viously decided orally. The case was
that of Tsuruda VS.. T. f. Farm. The
story as told in the opinion, which is
by Chief Justice Hartwell, is interest
ing. In part it is as follows:
OPINION OF THE COURT BY
HARTWELL, C. ].
The plaintiff brought replevin in the
District Court of Honolulu for zone
puakea (dun colored) horse, with black
name and tail and dark legs, and
branded on right flank NJ E (the lat
ter letter being indistincD," and the
defendant obtained judgment. On ap-
peal to the Circuit Court, jury being
waived. the plaintiff in November, 1906.
obtained Judgment, which was set
aside and a new trial granted for abb
sence of material witness for the de-
PENDANT, to wit, one Hyoda. In De-
cember the case came on again for
trial, resulting in a decision for the
plaintiff.
The defendants exceptions are %
to the denial of his motion for nom
suit for a material variance between
the description in the complaint and
bill of sale of the horse put in evil
dence by the plaintiff, which is trans
lated from its Chinese characters to
read: i''This bill of sale for one red
horse for the price of s26 and the
money was paid in full today, and
branded on the left hind leg with a
brand NJ E. Dated December 9th.
1903, Kong l. In and stamped Kong
Hoon"; (2) to the refusal to allow the
defendant to testify from his recollec-
ton as to the testimony given by the
witness Hyoda in the lower court, the
defendant having obtained a subpoena
for Oahu issued November 26, and,
upon its return December 6, unbound,
another subpoena the same day for
Maui, returned unbound December IS,
the day the case came on for trial; CD
to the decision on the ground of the
variance above mentioned.
The plaintiffs witnesses described
the horse as of dirty white color,
he color of the WALL" designated by
he court as coffee au lait." This
answers well enough the description in
he complaint, dun cOlored,' as we'll
Is the description in the bill of sale,
red horse" The brand, stated in the
complaint to be NJ E on the right
lank and in the bill of sale NJ E on
he left hind leg. when the horse was
by the court, was claimed
" defendants attorney to be w on
he right hip, which the plaintiff ex-
lained by saying, THE hair was long
efore and it looked blurred. My mark
) exactly the same with the excep-
ion of that" The plaintiff, corrob-
rated by other witnesses, identified
he horse by pointing out, among other
marks of Identification, mark on the
light eyelid, piece of which had been
ccidentally cut off. he said, while the
orse was in his possession.
The cases cited by the defendant
re to the effect that complaint for
wo bay horses, when the proof shows
hat one of them is a sorrel horse, is
fatal variance (Taylor V. Riddle, 80
IL. $50; that the recorded brand and
ne brand upon the animal must cor
or the discrepancy be salts
actorily explained Myers v. State, "a
ex. Ap. 1874; S. W. 1922; that brand
ecorded as upon the hip, while the
showed it to be on the ribs,
too great a variance CPriesmouth V.
tate. h. 4S0); that a recorded brand
S on the left hip, with evidence that
is on the side, did not preclude adj
disability of the record in evidence,
nd that the record, unsupported by
Their evidence, would not be sufficient
roof of ownership (Harwell v. State,
, Ib. 251;,2 S. w. 6O6): that a mort
age of twenty-five head of cattle
randed with a specified brand on the
ft-side and q on both hips, would
OF include eighteen head of cattle
18th the same brand on the left side
nd the remaining seven with q on
9TH hips IN. H. Cattle Co. v. Belly.
Mo. Ap. 43): and that it Is error
, instruct a jury that they might
isregard description of brands in de-
,rmining the sufficiency of a descrip-
On PACKERS Bank r. r. Co., ia Ia.
4; 81 n. w. $50. Deborb v. Johnson.
Colo. APP. 402).
In this case, however, tne JuuSe VINO
card the evidence and examined the
1rse was satisfied that it belonged
, the plaintiff and we can not, as mat
IT of law, say that he was wrong
he discrepancy between the camplain-
Mt and the evidence appears to have
zen explained to his satisfaction and
lere was evidence to support his find
g.