Wahl v. Yori

CHIPMAN, P. J.

Plaintiffs commenced the action to.recover the sum of $830, which it is alleged defendant agreed to pay for twelve head of cows at the agreed price of $65 per head and two calves at the agreed price of $25 per head, sold and delivered by plaintiffs to defendant, on or about November 13, 1915. A second count is for the like number of cattle of the reasonable value of $830.

The answer is a specific denial of the averments of the complaint, except that defendant admits nonpayment.

The cause was tried by a jury and plaintiffs had the verdict for the amount claimed and judgment was entered accordingly. The appeal is from the judgment under the alterna

[774]

tive method and is here on the judgment-roll and the evidence taken at the trial.

The defense on the merits of the case made at the trial was that the cattle in question were purchased by defendant from Albert Wahl, the father of plaintiffs, and hence defendant was not indebted to plaintiffs in any sum. Neither the number nor the value of the animals is controverted.

Plaintiffs were engaged in the business of farming and stock-raising near the city of Chico, Butte County; their father, Albert Wahl, was also engaged in the same business in a different part of the county. Defendant was a tenant of Albert’s and had purchased some cattle from him previous to the present transaction. He desired to make further purchase and applied to Albert, who told him his sons, plaintiffs, had cattle for sale. There was testimony that Albert took defendant to plaintiffs’ farm, where the latter examined and picked out the' animals referred to in the complaint and agreed upon the price to be paid; that the cattle belonged to plaintiffs and that the sale was made and cattle delivered by plaintiffs to defendant. Witnesses for defendant testified that the sale was made by Albert and that plaintiffs took no part in the transaction. Upon the question of ownership of the cattle and as to the person who sold them to defendant the evidence was conflicting. The jury accepted the evidence submitted by plaintiffs as true and so found by their verdict. Under the rule the judgment on the verdict cannot be disturbed by the reviewing -court.