1. Where a party offers evidence which is objected to and excluded by the Court, to which exclusion the party offering the evidence excepts, and the other party afterwards allows the evidence to go to the jury, the party first offering the evidence cannot maintain his exceptions. Massey v. Walker , 10 Ala. 288. Ligget v. The Bank of Pa. 7 Serg. & R. 219.
2. The exclusion of the testimony tending to show the sale to Meacham to be fraudulent, was proper, because no effort was made to show that the plaintiffs were cognizant of the fraud, if any.
3. The testimony tending to show the insanity of Weston was properly excluded. Jennings v. Webster, 7 Cow. 262.
4. The delivery was sufficient. Hollingsworth v. Bates, 3 Blackford, 340. Barney v. Brown, 2 Verm. 374. Potter v. Washburn, 13 Ibid. 558. Whitney v. Lynde, 16 Ibid. 579. Boynton v. Veazie, 11 Shep. 286. Park v. Hall, 2 Pick. 206 Damon v. Osborn, 1 Ibid. 486.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., and Bryan, J., concurred.
OPINION
HEYDENFELDT, Judge
The first assignment of error is the refusal to allow the defendant to cross-examine the witness, Howard. This was cured by the subsequent cross-examination of the same witness.
Second, The refusal to permit the defendant to prove the insanity of Weston. Weston was made a witness by the defendant, and stated that he was fully conscious, and recollected distinctly what he did, and was capable of doing business at the time of the sale. His introduction as a witness by the defendant, estops the latter from denying his sanity at that time, and the statement of the witness when in his senses in relation to his own condition at the time of the contract, ought to be conclusive. At any rate, it was no business of the defendant, provided the contract was fair, and the consideration sufficient.
Third, There was no error in refusing to let the defendant prove that the sale of the ranch to Meacham was fraudulent. There was no attempt to bring notice of the fraud to the plaintiff; but if that was done, it would be immaterial. The object was to show that, because the sale of the ranch was fraudulent, and the cattle remained on the ranch, that, therefore, there was no change of possession. But it must be recollected, that, however fraudulent against creditors might have been the sale from Weston to Meacham, yet it was good between the parties, and effected a complete change of the possession, as between them. It follows, conclusively, that the cattle remaining upon the ranch followed the actual possession of it by Meacham, and were no longer in the possession of Weston. Fourth, The remaining point depends upon the question of what constitutes delivery. It seems that one of the plaintiffs, after purchasing from Weston, repaired to the ranch with an order from him to his agent, to deliver the cattle to them; that simultaneously the possession of the ranch was delivered to Meacham the purchaser, and the agent of Weston discharged from his employment. This agent pointed out the cattle to the plaintiff, as they were grazing in view, and told him that he delivered him possession, and then accepted an offer of employment from plaintiffs to take charge of the cattle on their account, and did remain in the charge of them until they were seized by the defendant. This was a delivery as immediate and as complete as the nature of the case would admit, and followed by an actual and continued change of possession.
It results, that there is no error in the record, and the judgment is affirmed.
On question of delivery within statute of frauds, see Hodgkins v. Hook, 23 Cal 581. See Williams v. Lerch , 56 Cal. 334.