Hoare v. Hindley
Before: McKinstry
Synopsis
Statute of Frauds.—Hoare and Hindley were partners in a band of cattle, which were pastured on a public range. In June, 1869, they dissolved the partnership and corralled and divided all the cattle they could find, and agreed that Hindley should retain the partnership brand, and Hoare the partnership ear-mark, and that any cattle which had the partnership brand and ear-mark after the expiration of one year should belong to Hoare, and that, in the meantime, they should make divisions, and alter the ear-mark of cattle coming to Hindley, and the brand of those coming to Hoare: Held, that all that was to be done under the contract was to be performed within one year, and that it was not, therefore, in violation of the Statute of Frauds.
Impeaching Verdict of Jury.—An affidavit of a juror cannot be received to impeach his own verdict, unless the verdict was arrived at by “a resort to the determination of chance.”
Idem.—An affidavit of a party to an action, stating what took place in a jury-room while the jury were considering their verdict, without any statement therein, or proof that such party was present in the jury-room, will not be received to impeach the verdict of a jury, for it cannot be presumed that such party was present in the jury-room.
By the Court, McKinstry, J.: The evidence in respect to the terms of the agreement under which the cattle were divided was conflicting in a substantial degree, and the Court below was satisfied with the verdict. We do not feel authorized to set it aside.
The contract, as testified to by the plaintiff, was not in violation of the statute of frauds. All that was to be done under it was to be done within one year. There was no competent evidence of any misconduct on the part of the jury except the affidavit of the defendant, taken before Buck, the Notary Public. The District Court properly disregarded that affidavit because it could not be assumed, in the absence of any proof to the contrary, that the defendant was present in the jury-room, or had any personal knowledge of what took place there while the jurymen were considering their verdict. (Turner v. Tuolumne County Water Company, 25 Cal. 397.)
Judgment and order denying new trial affirmed.
Neither Mr. Justice Rhodes nor Mr. Justice Crockett expressed an opinion.
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