Al G. Barnes Shows Co. v. Toyo Kisen Kaisha Oriental Steamship Co.

ST. SURE, J.

This action was brought by Al G. Barnes Shows Company, a corporation, against the Toyo Kisen Kaisha Oriental Steamship Company, D. W. Callahan and Stewart Tait, for three elephants, one tiger, twenty-five monkeys, one dog, and one king cobra snake, then in possession of the steamship company. Defendants Callahan and Tait were joined as defendants because they claimed an interest in the animals. All of the animals were delivered to plaintiff under claim and delivery proceedings, and used in its circus. Defendant Callahan did not answer, the Steamship Company filed a disclaimer, and defendant Stewart Tait filed an answer and counterclaim and later a supplemental answer, which was amended. His answers denied all the allegations of plaintiff’s complaint. In his counterclaim he set up ownership in himself of the elephants and monkeys, and asked for their restoration, or, if that were impossible, for $5,175, their reasonable value; also for $5,000 exemplary damages, and for costs of suit. The supplemental answer alleges the withholding and use by plaintiff of the animals since seizure, and the death, since the commencement of the suit, of all of them but one elephant. After demurrer to the answer and counterclaim had been overruled, the case went to trial on the complaint, answer, and amended supplemental answer. No evidence was permitted under the counterclaim. Judgment was for defendant Tait for $2,620.11, the value of two elephants and twenty-five monkeys, and for the return of the surviving elephant or $1,122.55, its value, with interest from the commencement of the action and costs of suit. Plaintiff’s motion for a new trial was denied and it appealed from the judgment.

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The evidence shows that in 1915 D. W. Callahan and A1 G-. Barnes Shows Company entered into a contract under which Callahan went to the Philippines for the purpose of bringing out Igorrotes, and with the further object of securing freaks or wild animals at the direction of the Shows Company. Callahan was supplied with $350 and a round-trip ticket to Manila. The Shows Company made advances to the Steamship Company to cover the return fare of ten Igorrotes that Callahan contemplated securing and bringing back to the United States. He arrived at Manila about January 20, 1916, and remained in the Philippines until about the 1st of April, endeavoring to find the Igorrotes for his employer, but without success. Callahan collected from the Steamship Company about $500, being the advances made for the fares of the savages to the United States. At this time he was conducting cable negotiations for two tigers and an elephant he had heard were to be had at Singapore. He also cabled to the Shows Company and received some $900 to pay for these animals. A few days before he was to leave for Singapore he had a talk with defendant Tait, whom he had met on a previous trip to Manila and who had lived there eight years. Tait intended visiting the United States, and Callahan suggested that there was good money to be made in buying wild animals, and that if Tait wished to accompany him he would show him what to buy and the prices to be paid, provided he might have the first option for Mr. Barnes of the Shows Company on all animals bought by Tait. Mr. Barnes, Callahan said, would purchase the animals immediately on their arrival in San Francisco. Tait agreed to go with Callahan, and they left Manila for Singapore. At Hongkong Callahan notified the steamship agent, Mr. Sheppard, that he would have an elephant and two tigers for shipment, and the latter said he would get in communication with Mr. Barnes and arrange the transportation. While at Hongkong Callahan, learning that the elephant he hoped to get at Singapore had been sold, decided to go to Saigon in an effort to replace it. He and Tait went to Saigon and thence inland to Phnom Penh, in Cambodia. There they heard of an elephant owned by the royal family. An audience was had with the king. After much haggling in four languages, carried on through interpreters, an elephant was purchased