In this case, this Court finds that the evidence was so far
conflicting as to remove the verdict of the jury from reversal by
an appellate tribunal.
Under par. 4277, § 399 of the Code of Civil Procedure of
Oklahoma of 1893, the original books of entry must be produced on
the trial; their production before the notary taking the deposition
of the witness who kept the books is not sufficient, and copies
made by the notary cannot be used where the objecting party gives
notice that the production of the books themselves will be insisted
While there may be a general rule that, in actions for tort, an
allowance for interest is not an absolute right, under par. 2640, §
23 of the Oklahoma Code of 1893, the detriment caused by, and
recoverable for, the wrongful
Page 208 U. S. 535
conversion of personal property is the value of the property at
the time of the conversion, with interest from that time.
Where the local statute provides, as does par. 4176, § 298, of
the Oklahoma Code of 1893, that, on request, the court may direct
the jury to find upon particular question of fact, the verdict will
not be set aside because the jury fails to answer an interrogatory
improvidently submitted in regard to a fact which was only
incidental to the issue.
Objections to remarks of the trial court which counsel consider
prejudicial must be taken at the time, so that, if the court does
not then correct what is misleading, its action is subject to
87 P.Rep. 311, affirmed.
The facts are stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This is an action brought by defendant in error against
plaintiff in error for $8,000, for the conversion of 410 head of
cattle. The case was tried to a jury, which returned a verdict for
the sum of $7,436.06. The jury also returned with the general
verdict answers to special interrogatories which were submitted at
the request of the commission company. Judgment was entered upon
the verdict, which was affirmed by the Supreme Court of the
Territory of Oklahoma. This writ of error was then sued out.
The assignments of error assail the sufficiency of the evidence
to justify the verdict and judgment, and certain rulings of the
1. As to the sufficiency of the evidence to justify the verdict,
we may say that we agree with the courts below. Upon the questions
of fact presented, the evidence was so far conflicting as to remove
the verdict of the jury and the action of the lower courts from
reversal by an appellate tribunal. The
Page 208 U. S. 536
issue between the parties was clearly defined. Edmisson had
become indebted to the commission company in large amounts of
money, secured by certain notes and chattel mortgages on the cattle
which are the subject of the action.
In full satisfaction of the indebtedness the company and he
entered into an agreement on the twenty-second November, 1899,
by which he
agreed to deliver to the company 1,900 of the cattle as they run on
the range, if that number could be found, of various ages. And it
was further agreed that if, after the delivery of that number,
Edmisson should gather as many as 200 head, he should turn over 100
of them to the company, or if he delivered as many as 2,000 head,
"any residue thereafter" was "to be retained by said Edmisson."
Edmisson contended that he delivered 1,700 head in compliance with
this agreement, and was ready and had "rounded up" about 350 head
of other cattle and held them for a time ready to deliver to the
company. These cattle, after being held for a time, were turned
Page 208 U. S. 537
loose in a larger pasture. And Edmisson further contended that
the company, by its agents, forcibly took from his ranges and
pastures in excess of the number the company was entitled to under
the agreement, and for this conversion the action was brought.
Edmisson's evidence was addressed to the proof of these
The counter-contentions of the commission company were that
Edmisson delivered to it only 1,550 head of cattle, and that he
refused to deliver any more and, instead of delivering enough more
to comply with his agreement, he scattered them through the various
pastures in bunches at distances of 40 or 50 miles from his range,
and it was with difficulty that the company, through its agents,
collected 356 head, making in all 1,881 head. In support of these
contentions, evidence was adduced and the jury rendered the verdict
2. The next assignment of error is that the court erred in
rejecting the books of account kept by the commission company
showing the number of cattle received and sold by the company. In
support of the contention involved in this assignment of error, the
commission company relies on § 4277 of the Statutes of Oklahoma of
1893 and the case of Kesler v. Cheadle,
12 Okl. 489, and
Drumm-Flato Commission Co. v. Gerlach Bank,
Section 4277 is as follows:
"Entries in books of account may be admitted in evidence when it
is made to appear by the oath of the person who made the entries
that such entries are correct, and were made at or near the time of
the transaction to which they relate, or upon proof of the
handwriting of the person who made the entries, in case of his
death or absence from the county."
To the contention, the supreme court of the territory replied
that the entries were not part of the res gestae,
besides, the books were not produced, and that neither they nor the
original entries were attached to the deposition of the witness,
nor were they shown to be lost or destroyed. "We
Page 208 U. S. 538
know of no rule of evidence," the court said, "that would permit
a witness to state the entries or the contents of a book of account
unless the book were lost or destroyed."
It is, however, contended that the books were before the notary
public who took the deposition of the bookkeeper, and that copies
of the entries were made by the notary. But when the copies were
offered as evidence, they were immediately objected to as
incompetent and immaterial and not the best evidence. The
commission company was therefore put upon notice that the
production of the books themselves would be insisted on. The notary
was not trying the case, and before the court and jury who were
trying it, the objection to the copies of the entries were renewed.
We think that the books should have been produced. They were
intended as independent evidence -- independent of the witness from
whose returns they were made. But if it should be granted their
exclusion was error, it is difficult to see how the commission
company was prejudiced. The persons who received the cattle at the
place they were delivered to the company, and the employee of the
company who sold them after they were received, and from whose
report the books were made up, all were permitted to testify. And
it may be that the entries in the books were inadmissible for the
other reasons given by the supreme court. They were not entries of
any transaction relating to the cattle between the commission
company and Edmisson. They were entries of sales made by the
commission company after the cattle had been delivered to its agent
and shipped to it by that agent.
3. Error is assigned upon the instruction of the court that, if
the jury found a conversion of the property, seven percent interest
should be added to its value from the time of its conversion. The
contention is that interest can only be given in actions by a
creditor against a debtor, and that § 2615 of the Oklahoma Statutes
of 1893 controls. That section reads as follows:
"In an action for the breach of an obligation not arising
Page 208 U. S. 539
contract, and in every case of oppression, fraud, or malice,
interest may be given in the discretion of the jury."
The supreme court of the territory rejected the contention,
deciding that § 2640 governed the case. It provides as follows:
"The detriment caused by the wrongful conversion of personal
property is presumed to be: First. The value of the property at the
time of the conversion, with the interest from that time."
There was no error in this ruling. It may be that, in the
absence of statute, the general rule is that, in actions for tort,
the allowance of interest is not an absolute right,
7 Wall. 132; The Scotland,
118 U. S. 507
District of Columbia v. Robinson, 180 U. S.
; Frazer v. Bigelow Carpet Co.,
126; but the Oklahoma statute has made interest a part of the
detriment caused by the conversion of personal property. Other
states have done the same.
4. The next assignment of error is based upon the refusal of the
court to require an answer to interrogatory number 5, as to the
number of Edmisson's cattle the agent of the commission company
shipped from Curtis to Kansas City.
To establish error in the refusal of the court, plaintiffs in
error cite § 298 of the Civil Code of the territory, which provides
that, in all cases, the jury shall render a general verdict, and
the court shall, in any case, at
"the request of the parties thereto, or either of them, in
addition to the general verdict, direct the jury to find upon
particular questions of fact, to be stated in writing by the party
or parties requesting the same."
It certainly cannot be contended that the statute requires every
interrogatory to be answered, however remote the fact it inquires
about may be from the issue. The supreme court of the territory
pointed out the fact inquired into was only incidental to the
issue, and was, besides, undefined and uncertain as to time. The
number of cattle shipped might have some bearing or relation of
proof to the number delivered, which was the issue in the case,
but, under the circumstances and conditions of the other proofs, it
was within the discretion
Page 208 U. S. 540
of the court to decide whether a specific answer should or
should not have been required. Indeed, the interrogatory seems to
have been improvidently submitted, for the supreme court, in its
"The evidence disclosed that a large number of Edmisson cattle
had been shipped to Kansas City, in various shipments. Bryson
testifies that the total number of cattle shipped was 2,578. There
was no dispute on the part of the plaintiff as to the number of
cattle that were shipped. The entire controversy was as to the
number of cattle that were delivered by the plaintiff to the agent
of the defendant, and the number converted after allowing the
defendant all that it was entitled to under and pursuant to the
5. Plaintiffs in error finally complain as ground of error of
certain remarks by the court which, it is contended, were
prejudicial. The supreme court replied to this assignment of error
that no objection had been taken to the remarks complained of.
Counsel now say that to have made objection would have made "a bad
matter much worse." But we cannot accept the excuse. We have
examined the remarks complained of, and we do not think they had
the misleading strength that is attributed to them. At any rate, it
was the duty of counsel to object to them, and if then the court
made matters worse, or did not correct what was misleading or
prejudicial, its action would be subject to review.
"This agreement, made and entered into this 22d day of November,
1899, by and between Drumm-Flato Commission Company, party of the
first part, and R. C. Edmisson, party of the second part."
"Witnesseth, That said R. C. Edmisson, the second party, hereby
agrees to deliver to Drumm-Flato Commission Company nineteen
hundred (1,900) head of cattle as they run on the range (provided
the same can be found to make this number of head) of various ages,
and on which said Drumm-Flato Commission Company hold a chattel
"The parties of the first part agree, in consideration of the
delivery of the above-mentioned number of cattle, to deliver to
said second party, R. C. Edmisson, all of his notes, mortgages, and
other indebtedness due said Drumm-Flato Commission Company to this
"It is further agreed by the parties mentioned that, if Mr.
Edmisson gathers as many as 200 head after the delivery to
Drumm-Flato Commission Company of said 1900 head of cattle, he is
to turn over 100 head of the 200 gathered, or in case said Edmisson
delivers to said Drumm-Flato Commission Company as many as 2,000
head of cattle, any residue thereafter is to be retained by said
"In witness whereof, we have hereunto set our hands the day and
year above written."
"R. C. Edmisson"
"Drumm-Flato Com. Co."
"Per A. Drumm, P't."