This is an action in claim and delivery, brought by the respondent against the defendant company to recover Ithe possession of 11 head of steers, which the said respondent, as plaintiff, claimed had been taken from his possession and wrongfully detained by the said appellant, defendant in the lower court. Plaintiff sought to recover the value thereof, in case the property could not be delivered, together with $200 for damages for the unlawful detention. Plaintiff’s complaint describes the steers as 11 head, three years old, a part of which are branded -~- 011 the left side, and a part branded V; both of said brands being vented with the vent of the owner of said brand, ” — ” below the above brand. All of said steers were also branded with K on the left side, which is the brand owned and run by 'the plaintiff. The plaintiff alleged this wrongful taking as occurring on December 29, 1903, and that before the commencement of action he had demanded the return of the property. Defendant, answering, alleges: That November 4, 1902, one McQueen and one Barger were the owners and in the possession of the property described in plaintiff’s complaint, together with other cattle and horses; that on said date defendant loaned McQueen & Barger a large sum of money, taking from them their note due November 4, 1903; that to secure ,said note they took a chattel mortgage (on the property described in plaintiff’s complaint, together with other property; that said *633mortgage was duly filed on November io, 1902; that the mortgagors failed to pay the note or interest; that upon said default the defendant took possession of the property described in the complaint herein and duly foreclosed said mortgage as provided hy law; that the officer foreclosing made report as provided by law; and that the amount realized from the foreclosure was insufficient to pay the debt. Replying, the plaintiff claimed that he purchased, said steers of McQueen & Barger prior to November 4, 1902, and that said McQueen & Barger were not the owners of said steers on November 4, 1902, and alleged that ifche defendant knew of ¡said purchase before the execution of said mortgage, and denied that the said mortgage was made at the time. claimed.
The above are the material allegations of the pleadings. Plaintiff offered testimony, which was received, which, if believed, would tend to show: That on or about October 22, 1902, he entered into a contract for the purchase of 15 head of steers from McQueen & Barger at an agreed price; that on that date 7 head were separated from a large number, branded and taken in possession by the plaintiff; that he made a partial payment, and a day or two later another .small payment; that he 'was about to ship some stock to market, and agreed that upon his return he would pay McQueen & Barger, and it appears without dispute that on November 6, 1902, he gave a check to McQueen for the amount which he claims was the balance due, and which together with the other payments would amount to the sum which he claims he was to give for said stock. The testimony on behalf of plaintiff would also tend to show that after making this contract for purchase, and before the payment of the check above referred to, which was by far the greater part of said purchase price, the plaintiff had a talk with the president of the bank, defendant, advising him that he had made such purchase, and that said bank, through its president, assured him that he was iglad he had made the purchase, that they had a mortgage on some of McQueen & Barger’s stock, and that the sum plaintiff was to give was more than the stock would bring if shipped. The testimony on behalf of plaintiff also tends to show that the mortgage of November 4, 1902, was not signed by Barger until about November 9th, and plaintiff claims that that was the date he witnessed same.
*634The /evidence on the part of the defendants would go to show that on November 4, 1901, McQueen & Barger, being indebted to the bank, gave their note therefor in the sum of $2,400, secured by a large number of cattle and horses (described in chattel mortgage given on that date, which said chattel mortgage described, among others, 18 head of steers, two years old, branded on left side, fwhich description would describe cattle described in the complaint for the reason that plaintiff testified that the fiar under the K was placed on by himself, but does not agree as to age. Said mortgage of November 4, 1901, did not state that the stock therein described wa-s all of the stock belonging to the mortgagors answering said description. The mortgage described the stock as situated in Custer county, and the mortgage was filed in Fall River county. The defense disputes the plaintiff as, to the conversation claimed to be had in the latter part of October, 1902, and the defense claims that they (were never advised that the plaintiff had bought or contracted to buy the steers in question. The defense also introduced proof to show: That the mortgage dated November 4, 1902, was given on that date; that before it was taken by the bank the president of the bank interviewed plaintiff and told him that the bank had been asked to renew the papers of the mortgagors ; that the mortgagors represented that they had a certain amount of stock, considerable more than in the old mortgage, and asked the plaintiff if it was true; that the plaintiff assured them that he believed it was; that the plaintiff was present when the new mortgage was taken which mortgage secured the original debt of $2,400, together with anpther sum; that at that time the matter of the first mortgage was all talked over; and that on that date, November 4, 1902, said new mortgage was executed by both the mortgagors and witnessed by witnesses, among whom was the plaintiff. Said mortgage of November 4, 1902, purports tro cover all the stock owned by the mortgagors. Defendant describes, among other stock not material to this suit, 3 head, three year old (steers, all branded -^-011 the left side and 31 two year old steers branded •^r on the left side.
Upon the trial defendant offered evidence to show that the stock sold did not answer the description contained in the com*635plaint. This evidence was rejected, and exception taken, and such exceptions preserved on appeal. The ruling pi the lower court is clearly correct, beqause by its answer defendant had estopped itself from claiming that it had not taken the property described in the complaint, and no request was made to amend the answer. The defendant also complains that the court wrongfully denied its right to ask certain questions of 'the sheriff which it was claimed would have tended to show the amount of stock owned by McQueen & Barger when the mortgage 'was given; but it is clear that the ruling of the court was right because it related to what an officer found a year after the mortgage was given, and in no manner tended to show what property was owned by or in possession of the mortgagors at date of 'mortgage, and could not be received to show that the property sued for was not taken by defendant; the answer, as hereinbefore stated, having admitted this.
Defendant complains because he was not allowed to ask McQueen on cross-examination the following question: “You sold some of this mortgaged property to Kime, didn’t you?” This was objected to as improper cross-examination. This ruling was correct in view of the direct examination, and, moreover, the answer would have been immaterial. This question related to property covered by first mortgage, and, as will be hereinafter explained, the first mortgage did not cover the property sued for, and therefore whether Kime bought any of the property that was covered by first mortgage or not was absolutely immaterial.
Defendant also complains because plaintiff was allowed to answer the following question: “Mr. Kime, you may state to the jury when you became the owner of these n head of cattle described in your complaint.” This was asked of plaintiff after defendant had rested his case and was objected to as not rebuttal, and also as icalling for the conclusion and opinion of the witness. This witness had prior thereto on his direct examination testified as to about when lie purchased them, and this without objection, and after the above question was asked and answered 'in rebuttal he went on and detailed the circumstances connected with said purchase, which was certainly within the discretion of the court to -allow, especially in view of the issue that the- defense had attempted to raise. '
*636The defendant also complains of certain instructions given by the court. One of these instructions is either incorrectly transcribed, or else, the court inadvertently omitted words therefrom. In its present form it is apparently conflicting. The instructions, taken as a whole, we think, are not prejudicial to the defense; but, if technically wrong, we think they were error without injury, for the reasons hereinafter stated. The defense also claimed that the verdict should be set aside because it was the result of passion and prejudice on the pant of the jury. They are not entitled to this relief, because they have not a proper'record therefor in the specifications of error, only complaining as to the amount of damages which .the jury allowed for wrongful detention, and we think that the error of the jury in assessing damages appears to have been an honest mistake, instead of the result of passion, the sum assessed as value of the property not being over a fair valuation of the property, and this error as to amount for wrongful detention undoubtedly came up from the fact that the court failed to call their attention to what they had a right to consider in fixing the amount of damages. Inasmuch as the plaintiff had in the circuit court, before the judgment was rendered, remitted all damages allowed the defendant, there is no ground for complaint.
We have gone quite fully into this case, but, regardless of whether there were errors upon the trial, it is clear to us that the judgment above should be sustained for the reason that, taking the uncontradicted testimony in connection with the evidence offered by the defense, the plaintiff was entitled to a verdict for possession of this stock; and for 'the following reasons: The mortgage given in 1901 covered 18 head of two year old steers, together with other stock, but did not purport to cover yearlings nor did it purport to cover all the stock owned by the mortgagors. There was ample evidence, which, if believed, would establish a sale by McQueen & Barger to plaintiff of 15 head of two year old steers in the fall of 1902, a sale that would be perfectly good as between the parties thereto. And it appears from the record that it was practically conceded on the trial that such a sale was made, and the court so assumed in giving its instructions to the jury, this part of said instructions was not objected to. The 1901 mort*637gage did not describe the stock purchased by the plaintiff, as this mortgage covered steers which would be three years o.ld in 'the fall of 1902, and therefore, if plaintiff had received actual notice of the 1901 mortgage, it would be immaterial on the issue raised in this case. This failure of the 1901 mortgage to cover the property sued for disposes of many points which were raised by the defense, who at all times seemed to take the position that the plaintiff bought property .that was described in and covered by the first mortgage.
The >only question then is: Did the 1902 mortgage cover this stock ? If it did, then it might perhaps be good as to a part thereof upon the ground that, even if plaintiff had purchased them before the date of said mortgage, yet they had not passed from the possession of the former owners. The 1902 mortgage purported to cover, among other stock, 31 two year old steers branded K ion left side, and the mortgage declared the property therein described to be all the stock the mortgagors then owned; hut this description and declaration in the mortgage is certainly insufficient as against the prima facie case made by plaintiff upon his proof of the purchase of the stock in question. There is absolutely no evidence but that McQueen & Barger owned and had in their possession 31 head of ,two year old steers at the time they gave this 1902 mortgage, and had this number besides such steers as plaintiff had purchased and of which plaintiff had not yet taken possession; and certainly, without evidence to support it, the jury would have no right to assume that the 1902 mortgage covered any property which the mortgagors had already sold.
For the reasons above stated, we think the trial court would have been justified in submitting to the jury one question, namely, whether the plaintiff had bought the cattle of McQueen & Barger, directing them that, if they so found, then the plaintiff was entitled to a verdict for a return of the property or the value thereof, otherwise defendant to have a verdiqt for the possession; but as the court assumed that the plaintiff had purchased these cattle, and the defense have nowhere complained of this assumption on the part of the court, and have thus practically admitted the^ *638purchase of said cattle by the plaintiff, and the defendant having failed absolutely in proving that it ever had any mortgage upon the property purchased by the plaintiff, it follows that there could be no reversible error in the record.
The judgment of the lower court and the order denying a new trial are therefore affirmed.