Manha v. Grass Valley Meat Co.

SCHOTTKY, J. pro tern.—This is an appeal by plaintiff from a judgment in favor of defendants in an action brought for the conversion of 11 head of cattle.

The complaint was in three counts, alleging the wrongful conversion to their own use by defendants of 11 head of appellant’s cattle, of a reasonable value of $2,200, with an additional $400 claimed as reasonable compensation for efforts expended in pursuit of the aforesaid personal property. Paragraph I of the complaint alleged: “That at all times herein mentioned plaintiff was the owner of and entitled to the immediate possession of the following personal property: Eleven (11) head of white face cattle, branded M7 on right hip. ’ ’

Defendants’ denial of plaintiff’s ownership of the cattle was in the following form: “Allege that these defendants are informed and believe that at all times mentioned in said complaint, H. R. Kain was the owner of, or was vested with power and authority to sell for and on behalf of the owner of, and entitled to the immediate possession of the personal property described in said complaint, and placing their denial on such information and belief, deny each and every, all and singular, the allegations contained in paragraph numbered I of the first cause of action of said complaint.”

The trial court found against plaintiff’s allegation of ownership and also found: “That plaintiff has failed to prove his [775]title to, ownership of, or right to possession of the personal property described in said complaint. That said answering defendants acquired a good and valid title to said personal property as against plaintiff by their purchase thereof from IT. R Kain.” The court found further against plaintiff’s allegations as to conversion and reasonable value, and found that defendants had used reasonable care in determining title to the cattle, and believed Kain to be the owner, and had negotiated their purchase from him for the sum of $1,365.55.

The principal contention of appellant is that the evidence does not support the judgment, and before discussing this and other contentions of appellant we shall give a brief summary of the evidence as shown by the record.

Appellant, operator of a cattle ranch near Fallon, Nevada, testified that he heard rumors of cattle rustling, had his herd checked, learned from his employees that 59 head of his cattle were missing, and in his efforts to trace the cattle he traveled as far as Reno, Nevada. He used the brand M 7 on the right hip, and he heard from the witness Williams that respondents had bought and slaughtered 11 head of white-faced cattle branded M 7 on the right hip, whereupon he made demand upon respondents for payment at the rate of $200 per head on the assumption that they were his cattle and were 4 to 5 years of age. On cross-examination, appellant admitted that he customarily sold about 80 head of cattle each year, and that he had on occasion sold young cattle bearing his brand, for shipment to California, though it was his usual custom to sell only the older animals. One Dexter Hurley testified that he met Kain on April 21, 1948, at his (Hurley’s) home in Fallon, Nevada, that they left Fallon at about 11 p. m. that night and proceeded to the Sparks stockyard where they loaded 11 head of cattle, and proceeded at 4 or 5 a. m. on April 22, 1948, to Grass Valley, California, arriving there at about 2 p. m. of April 22d. Hurley said the cattle they loaded were branded M 7, and that he knew of his own knowledge that that brand belonged to appellant. He said they took the cattle to the Grass Valley Meat Packing Company where, in the absence of anyone else, they spoke to Mrs. Gliko, wife of one of respondents herein, who told them to unload the cattle, which they did at the Grass Valley Meat Company slaughterhouse corrals. Respondent Gliko testified that the cattle were slaughtered within two days at most from date of purchase on April 22, 1948, although he was not himself present; that as soon as