Anderson v. Doll

By the Court, Currey, J. This is an action of replevin for a thoroughbred stallion called “ Rifleman,” valued in the complaint at six thousand dollars. It appears from the record that on the 18th of February, 1862, one Welsh, then the owner of the horse Rifleman, borrowed of the defendant one thousand dollars, for which he gave him his promissory note, bearing interest at the rate of one and one half per cent per month. To secure the payment of the sum so borrowed, Welsh delivered the horse in pledge to the defendant. The defendant, wishing to use the horse, agreed to pay Welsh one thousand dollars for the use of the horse one year, and it was further agreed between the contracting parties that the defendant should have the privilege of keeping the horse another year, upon the same terms, upon giving proper notice of his election to do so; in which event the note mentioned was not to become due-until the lapse of the extended term. The defendant was to pay the expenses of keeping the horse, and also the taxes upon his assessed value. The taxes so paid were to be refunded with interest by Welsh to the defendant at the expiration of the term.

On the sixth of September, 1862, Welsh sold the horse to the plaintiff, and at the same time assigned to him the contract entered into between himself and the defendant. Early in the year 1863 defendant gave notice, in accordance with the terms of the contract, of his election to keep the horse the second year. Immediately after the second year had expired the plaintiff demanded of the defendant the horse, and at the same time tendered him the amount due on the note due him from Welsh, and also the sum due for the taxes on the assessed value of the horse for State and county purposes for the years 1862 and 1863, and the interest thereon at the rate stipulated. The sums so tendered the defendant accepted, but refused to surrender the horse. The plaintiff then brought this action. In defense the defendant alleged that by the contract he was entitled to have and hold the horse for three years, and also that [610]the county license tax for the years 1862 and 1863 for keeping the stallion for hire was not paid him.

The Court found that by the original contract the defendant had the right by his election to extend the term of holding the horse in his possession for one year in addition to the first year stipulated, so that by its terms the whole period would expire in the spring of 1864. It was also found that the copy of 'the contract offered in evidence by the defendant was interlined so as to give him the right to elect to keep the horse two years instead of one, additional to the first year; and that it was in evidence that the interlineation was made by the defendant in the presence of Welsh and with his consent on the day after the original contract was executed, but that there was no evidence that the plaintiff had notice of the change so made in the defendant’s copy or counterpart of the contract as first executed.