40 Kan. 525 | Kan. | 1889
The opinion of the court was delivered by
This was an action prosecuted in the district court of Eepublic county by John Allison as plaintiff, against Lydia J. McClun, guardian of the estate of Isaac McClun, insane, as defendant, for the recovery of one-half of $4,449.93, alleged to be due to the plaintiff as principal and interest on certain promissory notes executed by various persons other than those above named, and belonging to the plaintiff and to Isaac McClun jointly, and placed in the hands of Isaac McClun for collection; and for costs of suit. The defendant answered, denying generally the plaintiff’s claim, and setting up new matter constituting a claim on her part for moneys had and received by the plaintiff of Isaac McClun, a claim for the proceeds of 2,600 bushels of corn belonging to Isaac McClun and sold by the plaintiff, and a claim for rents due from the plaintiff for the use of a dwelling house belonging to Isaac McClun; and claiming a judgment in her favor for $2,166, and interest and costs. The plaintiff replied, setting forth a general denial and some new matter, and asking for judgment as prayed for in his petition. The case was tried before the court and a jury, and the jury made certain special findings of fact, and also returned a general verdict in favor of the defendant and against the plaintiff, assessing
Among the admitted facts are the following: On April 1, 1879, John Allison and Isaac McClun, who then resided in Gardner, in the state of Illinois, formed a copartnership for the purpose of conducting a banking business at Scandia, Republic county, Kansas, each contributing $10,000 to the capital thereof. McClun removed to Scandia, and gave his personal attention to the business. Allison continued to reside in Illinois, but was represented at Scandia by Emery D. Scott. They continued in the business for two years, when, on April 1,1881, they dissolved their copartnership by mutual consent, the terms of the dissolution being arranged by mail, and carried into effect on the part of Allison through the agency of Scott. By their settlement the entire business, including the building, furniture, etc., passed into the hands of McClun, except that the late partners continued to jointly own all the notes aud moneys on hand, and the accounts with correspondent banks. These notes were delivered to McClun for the purpose that he might collect the same and remit one-half of the proceeds thereof to Allison, less one per cent., which one per cent, was the agreed collection fee or commission which McClun was to retain for his services for collecting and transmitting Allison’s portion of the money. Before these notes were delivered to McClun, Scott made copies thereof on blanks contained in a blank note-book. Scott remained with McClun until about May 14,1881, when he returned to Illinois, taking with him Allison’s share of the moneys belonging to the late firm, and also Allison’s share of all the moneys which had been collected since the dissolution, and up to that time, and delivered the same to Allison. Subsequently, and at different times, McClun remitted to Allison other moneys collected by him, usually sending the same by draft. Allison also collected and received moneys due to McClun in Illinois, and also sold corn belonging to McClun in Illinois, and received the purchase-price therefor. On October 10, 1884, McClun
We cannot say that substantial justice has not been done in this case. Indeed, if the verdict of the jury and the judgment of the court below had been for a larger amount against
The plaintiff, however, has assigned various specific things which he claims are errors, and for which he claims the judg-
It is claimed that the court below erred in permitting the defendant to prove that McClun had the reputation of being prompt and honest in his dealings. The evidence complained of is as follows: The defendant propounded to her own witness the following question, to wit: “Do you know what his [McClun’s] standing was in the community for uprightness? Do you know what his character was for uprightness in business in the community?” To this question the plaintiff objected, but the court overruled the objection, and the witness answered as follows: “We considered it good.” Under the pleadings in this case, this evidence was probably admissible. The plaintiff in his petition in various ways charged McClun with fraud and moral turpitude. He charged that McClun collected the notes, converted the proceeds thereof to his own use, and withheld and concealed all evidence thereof. Among the allegations of the petition are the following: “That to further perpetrate said fraud, the said McClun fraudulently and wrong
We do not think that any error was committed in permitting the defendant to prove that McClun had sent to the plaintiff other drafts than those which the plaintiff admitted were drafts for money collected by McClun upon the notes in McClun’s hands. It is admitted that the plaintiff received all the money which these other drafts called for; and a cause of action was set forth in the defendant’s answer for money had and received. And further, the plaintiff pretended to set forth in his petition all the business transactions had between himself and McClun having any connection with the foregoing notes. He set forth the. aforesaid copartnership, its dissolution, the receiving of the notes by McClun, giving full copies of the notes; and he then pretended to set forth specifically and in detail all the payments that were ever made by McClun on account of the notes; and after setting forth all these things, he then alleged specifically '“that neither said McClun, his agents, guardian, or her agents, has paid or caused to be paid to this plaintiff, or any persons authorized to receive payment on his account, a single dollar or cent on any of said notes, accounts, or any or either of them, since August 30, 1881, or prior thereto, other than is hereinbefore expressly admitted, or indorsed on said exhibits to this petition.” And he further alleged as follows: “That the above and foregoing is a full, complete and correct statement of all unsettled business of the aforesaid copartnership of McClun & Allison, dissolved as aforesaid. That after allowing said estate all legal credits, counterclaims and set-offs to which it is entitled,
We think we have already sufficiently considered all the other assignments of error.
The judgment of the court below will be affirmed.