Moore v. Groftholdt

ALLEN, P. J.

In the action instituted by plaintiff against defendants the complaint filed set out a certain contract and agreement between plaintiff and defendants, under which it was claimed that defendants obtained possession of a certain band of cattle the ownership and right of possession to which was in plaintiff. It is alleged that under this agreement defendants undertook to transfer certain real property to plain

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tiff, in consideration of which plaintiff agreed to deliver the band of cattle mentioned and to pay defendants $250 in addition. That plaintiff surrendered possession of the cattle under an agreement that the title thereto should remain in plaintiff until the transfer of said real estate; that at the same time plaintiff loaned to defendants $100. And it is averred that defendants failed to transfer said real estate, or to repay said $100 so loaned, upon demand. Judgment is accordingly sought for the recovery of the personal property; or, in case restitution cannot be had, that plaintiff have judgment for the value thereof, to wit: $450; and, also, $250 damages for the wrongful detention, and $100, the amount of the loan.

Defendants admit the contract set out in the complaint, but allege that they never agreed to transfer any real estate, or to do any act other than to refrain from exercising a preference right to enter and file on certain described real estate; and allege that they performed all the conditions of said contract on defendants’ part to be performed. Deny that they borrowed the sum of $100, or ever promised or agreed to deliver over the personal property, or to pay said $100. By way of further answer and counterclaim, defendants set forth an agreement wherein defendants agreed to refrain from the ex-er'eise of a preference right to file on the tract of land described, in consideration of which the cattle were delivered and the promise to pay $250 was made, and that the sum of $100 was part payment of the sum of $250, that the sum of $150 remains unpaid, which they have demanded; and allege that they performed all of the conditions upon their part to be performed. They pray judgment for the restitution of the property, or for $450, the value; judgment for $150, the amount unpaid on the contract; and $250 for the wrongful detention of the property. It also appears that plaintiff under the proceedings obtained possession of the cattle and held such possession at the time of the trial of the action.