25 Kan. 410 | Kan. | 1881
The opinion of the court was delivered by
It is objected that the petition below does not state facts sufficient to constitute a cause of action. A general denial was filed, and the objection was made for the first time in.the court below by a motion to exclude all evidence. Such an- objection is never favored, and will prevail only when there is a total failure to allege some matter essential to the relief sought. The petition states somewhat informally, according to the old system of pleading, “common counts/’ for money lent and money paid, also a formal count for money had and received. The pleading is sufficient, and hence the objection was properly overruled. (Meagher v. Morgan, 3 Kas. 372; Barkley v. State, 15 Kas. 99.)
The third error assigned consisted in the admission of certain secondary evidence tending to prove in a very faint manner the contents or a part of the contents of the telegraphic message sent.to Quinlin, Montgomery & Co., of Kansas City, Missouri, by Huntington; on April 26th, 1878. In order to lay the foundation of this evidence, plaintiffs introduced the witness Charles Thomas, who testified as follows:
“I am the telegraph operator at Concordia, and have charge of the office, books and papers; there are not in the office any of the dispatches which were forwarded from this office on April 26th, 1878. I suppose they have all been destroyed, as it is the custom to destroy them after six months. I have with me the books of the Concordia office. I had not charge of and was not about the office in April, 1878. The entries
The witness was then asked to read from the book what message was sent from the office on the 26th of April, 1878. Defendants objected on the ground that the preliminary proof was not sufficient to let in such evidence, and because of its incompetency and irrelevancy. The court overruled the objection, and permitted the book to be offered in evidence. The witness then read from the book: “ H. & B. to Q,. M. & Co., Kansas City — nine words.” The evidence was wholly inadmissible. The witness had no knowledge of the destruction of the original message left in the office. He merely supposed it had been destroyed, as it was the custom so to do after six months; and more than six months had expired. He did not testify that it was the custom to keep the originals in the office until destroyed, or when or where the original was sent, or where or by whom it was destroyed. This evidence was insufficient as preliminary to the introduction of the book, as the plaintiffs had not “shown that they had in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would have naturally suggested, and which were accessible to them.” Before secondary evidence can be admitted of a lost paper, or one alleged to have been destroyed, evidence of the person who was the proper custodian of it, as to its loss or destruction, must be adduced. (Brock v. Cottingham, 24 Kas. 383.) If the original had been destroyed at the office in Concordia, evidence of that fact must have been easily obtainable. If it had been sent away to some central office of the telegraph company, the person having the custody of the message at its destination would have been a good witness to that fact. But independent of all this, the book was not the best evidence of the contents of the message. It really was no competent evidence at all. The book was not an account or shop-book, or any record recognized by the law as admissible in evidence. The person making the memorandum in the
The evidence having been improperly admitted, the next question to be considered is, whether its admission was sufficiently prejudicial .to demand a reversal of the judgment. It appears from the evidence, that on April 26th, 1878, there was a firm engaged in the cattle business in Cloud county, of the style of Upton, Barons & Co.; that on the said 26th day of April, the defendant, J. G. Huntington, obtained from the plaintiffs, Brown & Co., the sum of $1,000, for which Huntington drew a draft in his own name in favor of Brown & Co. on Quinlin, Montgomery & Co., commission-men of Kansas City. The money was used in paying for a drove of cattle, which Brown & Co. were given to understand would be shipped to Quinlin, Montgomery & Co., and that they would sell the cattle and pay the draft out of the proceeds of the cattle. The cattle were shipped, however, in the name of Laird &■ Johnson. Therefore Quinlin, Montgomery & Co,, having no money belonging to Huntington, and having no security on the cattle to reimburse them, refused to pay the draft which had been drawn by Huntington in favor of
“In the latter part of March or first of April, 1878, 1 had a conversation in the back room in the bank with Huntington. He told mé he was a member of Upton, Barons & Co., consisting of Upton, Barons, Pomeroy, Ellis and himself; that they were feeding cattle in this and adjoining counties; that the firm was wealthy, worth a quarter of a million or more; that they were feeding twelve or thirteen hundred head in this, Mitchell and Riley counties; that as a railroad had come .here they expected t.o ship from here; that they did not carry much currency with them; that they kept it in bank at Manhattan; that they borrowed only for a few days; that they would want money, and asked if they could get it. I said they could. The next talk was sometime in April, Toward the middle. It was raining the night before. It was about nine or half-past nine o’clock. Huntington and I talked. Barons came up; he introduced Barons to me; it may have been the 20th. He told me who Mr. Barons was, that he was of New York, and a member of their firm. I had a talk with Barons, and told him what Huntington had told me, and asked him if Huntington was a member of the firm; he said he was, was doing the western business. I asked him if it would be all right to let Huntington have money for the firm, and he said it would, and that Huntington £ had told him he had sent a telegraphic dispatch in the name of Huntington and Barons to Quinlin, Montgomery & Co. that they had drawn on them.’ The next time I saw Huntington was the day when I let them have the money.”
Other testimony was introduced to sustain these statements. On the defense, Barons testified:
“ I had no interest of any kind in the purchase of Laird & Johnson’s cattle. Huntington was not in any way connected with our firm, or employed by us. Wright was complaining of Huntington not having sufficient hands to drive the cattle, and I helped Wright to take one bunch of cattle from Concordia to Clifton. I went on the train which took these cattle down as far as Manhattan, where I got off and attended to some business, and then took the express to Kansas City. I got nothing for what I did in assisting to drive these cattle.
Huntington testified for defense:
“I was in Concordia April 26, 1878. On that day I purchased a lot of cattle from Laird & Johnson. I purchased them for myself; neither Mr. Barons nor any member of the firm of Upton, Barons & Co., had any interest in the purchase. • On that day I borrowed from N. B. Brown & Co. f 1,000, and gave them a sight draft on Quinlin, Montgomery & Co., of Kansas City, for the amount. It is the same draft which has been shown here. It was given for money I paid to Laird & Johnson. The draft has not been paid, because the cattle did not pay out, and I was unable to pay. I owe it yet. When I got the money I intended to ship in my name to Quinlin, Montgomery & Co., and Laird & Johnson were to have gone down with me to Kansas City to get
From these extracts it is evident the testimony as to the liability of Barons, or Upton, Barons & Co., was very conflicting. Slight evidence on either side would naturally
Under these circumstances, the testimony was highly prejudicial. Undoubtedly the jury believed the initials “ H. & B.” meant Huntington & Barons, and “ Q,. M. & Co.” meant Q,uin-lin, Montgomery & Co.;-at least they may have inferred so.. It is probable that the maker of the memorandum in the book intended the initials to mean as interpreted above. Nevertheless, the book being inadmissible, the jury ought not to-have been permitted to consider such entry or memorandum. ¡"J For the error in admitting the book from the telegraph office and the memorandum therein for the consideration of the jury, the judgment in the case must be reversed.
"NWith this conclusion, the other questions submitted are not important. They may not arise upon another trial.
The judgment of the district court will be reversed, and a new trial ordered.