
    James G. Ross v. Robert Houghton.
    
      Replevin — Instructions raising unwarrantable inferences.
    
    A lumberman’s employee asked tbe foreman to bring a span of gray-mares wbicb he owned, from a distant point, but the foreman sold them, and on his return indicated a span of French ponies which he had brought with him and which he thought would be satisfactory-in place of the mares. It did not appear, however, that the mares had been exchanged for the ponies. The lumberman afterwards sold out and the ponies were included in the sale. The employee took possession of them and the purchaser sued him in replevin. The foreman, who was not employed by the purchaser, was a witness for the plaintiff, and was cross-examined as to whether he had not evaded a settlement with the owner of the mares. Held, error to so charge the jury as to leave them to infer that the foreman was the purchaser’s agent, and that the purchaser was interested in the attempt at a settlement and was involved in any trickery connected therewith.
    Error to Marquette. (Grant, J.)
    June 19.
    — June 25.
    Replevin. Plaintiff brings error.
    Reversed.
    
      F. O. Clark for appellant.
    
      E. J. Mapes for appellee.
   Campbell, J.

This case was presented with another involving title to the same property, but in a way so far different as to require a separate discussion.

This action is replevin for a pair of black French ponies claimed by defendant as his. They were sold plaintiff by the firm of Gordon & Co., who were his predecessors and assignors in the lumbering business in Schoolcraft county. They were bought for Gordon & Co. by Mr. Weller, who was their general agent, and brought up by him from Canada in the summer of 1880 with thirteen or fourteen other teams. Defendant’s claim is that when Weller went east that summer, defendant asked him to bring up' a team of gray mares that defendant had owned for several years, and that instead of doing this Weller sold them and these ponies were given him instead.

The testimony seems to indicate that ■ these grays were held in Canada under a chattel mortgage which Mr. Gordon redeemed, and that it was not thought worth while from their age and condition to take them to Lake Superior, and pay freight and duties, and so Weller sold them. There is no testimony tending to show that they were exchanged for the black ponies, and defendant does not claim he so understood. But he does claim that Weller told him he should have these in lieu of them, although apparently more valuable.

The issue, therefore, was simply whether Gordon & Co. sold or gave these ponies to Houghton to make up for the gray mares.

While it is difficult to see satisfactory evidence of the transfer, which would comply with the statute of frauds, that specific point is not made on this record. But it is •claimed that on the conflicting state of the testimony concerning what is claimed to have been a sale, effect was allowed to certain evidence which was prejudicial and irrelevant.

It appears that Weller who was in general charge for the Gordons, was not general agent for Boss, who was represented in that office by Mr. Conelly, to whom this property was turned out by Gordon & Co. Among other inquiries •one naturally arose as to how the accounts stood between Houghton and Gordon & Co., especially as bearing on dealings connected with the. horses, which had been employed more or less in such a way as would be consistent with defendant’s ownership, though not necessarily indicating it.

Defendant’s counsel was allowed on cross-examination of Weller to show that he attempted to get a settlement with defendant of his account with Gordon & Co., and that some months before Houghton had seized the ponies out of the field where they were pastured, the book-keeper had been told to credit him with $60, as the price brought by the mares. After being asked about this last attempt at settlement, defendant’s counsel were allowed under objection to .ask whether Weller had not, after this suit was begun, repeatedly agreed and then avoided to meet Houghton for a settlement. The court ruled that anything which showed he did not try to get a settlement was material. In his' charge the judge spoke of Weller as agent not only for Gordon & Co. but also for Boss, which last was.not admitted, if there was anything tending to prove it. He also spoke of this attempted settlement as not binding .on Boss Co. unless cognizant of it, and that an attempt at a settlement joending the suit would not have much force.

But the rulings together left the jury at liberty to infer, that Ross might in some way be interested in Weller’s attempts to settle with Houghton, and the evident purpose of urging Weller with questions looking towards previous evasions of settlement, must have been to lead to an idea that there was some trickery resorted to for the purpose of affecting this controversy. Calling this material, and speaking of Weller as Boss’s agent, could hardly help inducing the jury to connect transactions which had nothing to do with each other: If Gordon & Co. sold the team to defendant, the sale could not be affected by subsequent accountings. And if they did not sell it to defendant, then Boss’s title could not be affected by the subsequent sayings or doings of Gordon or Weller. The conclusions of the jury were so peculiar, when compared with all the proofs, that we think it evident they became confused about the relations of the various parties. At all events there was room for it under the rulings.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.  