Blanchard v. Scarpa

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiffs and against the defendant in an action for claim and delivery of certain livestock claimed by the defendant and appellant to have been lawfully impounded by him under the act concerning estrays. Upon the trial of the case the court found that the plaintiffs were at all times the owners of the stock in question, and further found that on the sixth day of October, 1916, the animals in question were taken into possession by the defendant as estrays, and that said animals were at the said time of their taking estrays under the terms and meaning of the act of the legislature entitled “An act relating to estrays, etc., ’ ’ approved March 23, 1901, and, with its several amendments, in force at the time of the impounding of said animals by the defendant. The court further found that the defendant had incurred expenses and costs by reason of the taking up of such stock amounting in all to the sum of forty-two dollars, being at the rate of fifty cents per day for the keeping and care of each head of stock for the period of one day.

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The foregoing findings of the court were sufficiently supported by the evidence in the case; but the trial court, in making these findings, further found “that before the commencement of this action plaintiffs demanded of defendant possession of said personal property, but that said defendant wrongfully refused to deliver possession of said personal property or any of it to these plaintiffs unless said plaintiffs pay to said defendant a certain sum of money, but that said sum was not demanded or claimed under the provisions of the act above set forth but as damages to the property of said defendant which he claimed to have suffered at other times than the time at which said taking up took place.” We have scrutinized the record in vain to find any evidence whatever which supports the portion of the above finding wherein, after reciting that the defendant demanded of said plaintiffs the payment of a certain sum

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of money as the condition of the redelivery to them of their said personal property, it is declared, “but said sum was not demanded or claimed under the provisions of the act above set forth, but as damages to the property of said defendant which he claimed to have suffered at other times than the time at which said taking up took place. ’ ’ The only evidence which the record contains on this .subject is that embraced in the testimony of the plaintiff Blanchard in said action, and of his employee McNamara, each of whom stated that at the time they demanded the possession of the plaintiffs’ property the defendant demanded payment of a dollar and a half a head before he would give them up. There is nothing whatever in the record which we have been able to discover which in any way tends to show that this demand on the part of the defendant was predicated upon a claim for damages other than that arising out of the fact that he had impounded said stock as estrays. The evidence in the case is also lacking in any showing that the plaintiffs, either at the time of said demand or at any time prior or subsequent to the commencement of this action, tendered to said defendant any sum whatever in payment of the sum to which he would have been entitled under the provisions of the Estray Act as a condition precedent to the retaking of said stock. On the contrary, the record discloses that the plaintiffs at all times insisted that said animals were not estrays within the meaning of said act, and that said defendant was entitled to no sum whatever for the keeping and care of said stock.