The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-10-22
WHAT WAS THE
HORSE'S COLOR?
Sued for a Red Horse and Got
Oun-COl0red One in
Court.

A written opinion was filed yesterda
in the Supreme Court in a case pre-
viously decided orally. The case wa
that of Tsuruda VS.. T. F. Farm. TIL
story as told in the opinion, which il
by Chief Justice Hartwell, is interest
ing. In part it is as follows:
OPINION OF THE COURT BY
HARTWELL, c. j.
| The plaintiff brought replevin in the
/ District Court of Honolulu for lone
! puakea (dun colored) horse, with blacl
/ name and tail and dark legs, anC
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 alb
sence of a 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 %
a
suit for 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: t"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
brand NJ E. Dated December 9th,
1903, Kong 1. 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 it's return December 6, unbound,
another subpoena the same day for
Maui, returned unbound December rs,
the day the case came on for trial; 49,
to the decision on the ground of the
variance above mentioned.
The plaintiffs witnesses described
the horse as of a dirty white color,
the color of the WALL designated by
the court as coffee au lait." This
answers we'll enough the description in
the complaint, dun colored,' as we'll
as the description in the bill of sale,
red horse" The brand, stated in the
complaint to be M E on the right |
flank and in the bill of sale NJ E on |
the left hind leg, when the horse was
examined by the court, was claimed |
by defendants attorney to be w E on |
The right hip which the plaintiff ex-
planned by saying, The hair was long
before and it looked blurred My mark
s 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, a piece of which had been
accidentally cut off, he said, while the
lorse was in his possession.
The cases cited by the defendant
re to the effect that a complaint for
wo bay horses, when the proof shows
hat one of them is a sorrel horse, is
fatal variance (Taylor V. Riddle, 50
H. 567); that the recorded brand and
he brand upon the animal must cor
espond or the discrepancy be salts
actoriIy Explained myers V. State, "a
'ex. Ap. 334; 6 S. w. 1922; that brand
ecorded as upon the hip, while the
} too great variance (Priesmouth V.
tate, i 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. ISL S. w. 606): that mort
age of twenty-five head of cattle
randed with specified brand on the
TT side and z on both hips, would
OF include eighteen head of cattle
it'll the same brand on the left side
nd the remaining seven with 4 on
9TH hips On. H. Cattle Co. V. Belly,
Mo. Ap. 43); and that it is error
, instruct a jury that they might
sregard description of brands in de-
rmining the sufficiency of a descrip-
on PACKERS Bank r. r. Co., la Ia.
1: 81 N w 653. Deborb V. Johnson, =
Colo APP. 402).
In this case, however, the judge who
card the evidence and examined the
,rse was satisfied that it belonged
the plaintiff and we can not, as mat
+ of law, say that he was wrong.
ne discrepancy between the camplain-
It and the evidence appears to have
en- explained to his satisfaction and
ere was evidence to support his find
6.