Bernstein v. Smith, 10 Kan. 60

Bernstein v. Smith

10 Kan. 60 | Kan. | 1872

The opinion of the court was delivered by

Brewer, J.:

1. Bill of pai'acc?S:trespass. This was an action brought originally before a justice of the peace to recover the value of certain ties belonging to defendant in error and converted by plaintiff in error to his own use. The amount claimed in the bill of particulars was three hundred dollars. And the first point made is, that the justice had no jurisdiction of . J “ Sm^ because the bill of particulars shows that the action was one for trespass on real estate and the damages demanded exceeded one hundred dollars. The bill of particulars was as follows:

“I. Bernstein, to Leonard T. Smith,

To timber taken and received from the S.W.jjr of section 8, town 12, of range 22, in Leavenworth county' — -400 cross-ties, of the value of 50 cts. each, . ........$200 00

Three sets of switch-ties, of the value of . . 100 00

“Total.........$300 00

This does not seem to us to justify the construction claimed by counsel for plaintiff in error. It is an action on account for the value of certain personal property. It is stated in the ordinary form of an account; all that is claimed is the value *67of the property. Nothing is asked for the injury done to the freehold. The reference to the really is simply for the purpose of identification. Though trespass may have been committed in taking the ties from the land, the law did not compel the defendant in error to seek redress simply v by his action for the trespass. He might waive the trespass and sue for the value of the articles taken. This we think he did.

2* lands In juspraoti?o°eurts' The trial was commenced before the justice. After a few witnesses for the plaintiff had been examined the record of the justice recites that “at this stage of the proceedings question of the jurisdiction of the court was raised by the defendant, an<^ ^ aPPear™S to to-e satisfaction of the justice that the title to land was in question in this action,” etc., the justice then ordered the action before him to be stayed, and the papers certified to the district court. The defendant was required to make the affidavit provided for by § 2, ch. 88, Laws of 1870, but failed to do so, and excepted to the ruling of the justice in certifying the case, and gave notice of his intention to file a bill of exceptions. None however was filed. We cannot say therefore whether the justice ruled correctly that the title to land was then shown by the testimony to be in dispute, but must presume that he did. That he might have proceeded with the trial, upon the defendant’s failure to file the required affidavit, and the defendant have no ground for complaint, may be true; though that we do not-decide. But we do decide that the defendant has no ground of complaint in the case as presented. He raised the question of the justice’s jurisdiction. The justice decided in his favor, and ordered the case stopped, and certified up. It would be strange indeed if he were permitted now to complain that the justice decided in his favor without a sufficient showing, and to obtain a reversal of a judgment on account of an error committed on his application and in his favor. Insisting then that the justice had no jurisdiction to proceed further, he is now estopped from saying that he had.

*68s.Evidence; patents. *67On the trial the district court, over the objection of plaintiff in error, admitted in evidence the record of a patent to the *68land from which the ties were taken without proof that the original was lost, destroyed, or not in the possession or under the control of defendant in error. "While this objection might have been well taken if made to the record of any other instrument, we think it is not as to a patent. Ch. 76, Gen. Stat., p. 607, authorizes the recording of patents in the office of the register of deeds. Sec. 2 provides that all duly certified copies of such recorded patents, iC shall be received in all courts and places in this state as prima facie evidence of the existence of such patents.” This we think makes an exception to the general provision of the statutes concerning recorded instruments, and authorized the reception of this record. The patent was to Alexander Caldwell, and conveyed with this quarter-section over 90,000 acres. The original deed from Caldwell to defendant in error was ■offered in evidence conveying this with other land, in' all between five and six thousand acres.

4. pleadings; amendments; waiver. It is objected that the district court erred ,in permitting an amendment of the bill of particulars, and it is insisted on the authority of Tarleston v. Brily, 3 Kas., 433, that . , -, , .. , , _ _ . . a petition should have been tiled m that court. As the defendant made no motion to dismiss for want of a petition, nor to compel the plaintiff to file one, nor objected to the introduction of testimony on the ground that there was none, we think he is now in no position to raise this objection. Nor was he prejudiced by trying the case upon an amended rather than the original bill of particulars. More than this : the record shows that plaintiff moved, before the trial, for leave to file a petition, which motion, after hearing both sides, the court overruled.

s. Estoppel: good invoking it. The refusal of two instructions is also claimed for error. One of them is as follows: “ If the jury find that at the time the ties in question were delivered to defendant at Lenape he ■did not know they belonged to plaintiff, and that the witness Cullison then was the agent for plaintiff, and as such agent then had charge and control of plaintiff’s timber at that place, and that said Cullison saw *69the delivery of said ties to defendant, knowing or believing' them to belong to his principal, and so under-his control and charge as such agent, and could have notified, but did not notify defendant, before he received and paid for those ties, that they belonged to his, Cullison’s, principal, and that the defendant must not receive or pay for them then, even, if the jury find that the ties in question were the property of plaintiff, they must nevertheless find a verdict for the defendant.” This was an attempt to apply the doctrine of estoppel. One essential in such cases is, that the party in whose favor it is invoked shall himself be acting in good faith. Now, this instruction ignores that. The testimony in the case shows that it was very probable that the defendant did not know to what particular person these ties belonged, but did know that they did not belong to the parties from whom he was obtaining them — knew in fact that such parties were stealing them from unoccupied lands in the vicinity. To permit the receiver of stolen property to claim title by estoppel, because he was ignorant of the person from whom the thief had stolen it, worjld be indeed a novelty in the law. The instruction was properly refused.

o. instructions, testimony. By the other instruction the defendant picked out a supposed contradiction between the testimony of two witnesses on different trials as to a single point, and asked that the jury be instructed that such a contradiction was a sufficient showing of the falsity of a large portion of their testimony on this trial. The court had already instructed the jury generally as to the effect of false testimony when given knowingly and willfully, and we think that was all the instruction necessary to be given on this point. Even if he had not thus instructed the jury, we think this instruction should have been modified before it was given. But to what extent and in what particulars it ought to have been modified, it is probably unnecessary to inquire. Upon an examination of the entire record we think the judgment of the district court should be affirmed, and it is so ordered.

All the Justices concurring.