31 Kan. 113 | Kan. | 1883
The opinion of the court was delivered by
On September 8, 1882, F. Beyle commenced this action in the district court of Labette county against C. A. Beid, alleging in his petition, among other things, the following: About N°vetnber 1, 1881, Beyle employed Beid to work for him in purchasing a stock of furniture, and in conducting and carrying on a mercantile furniture business in the city of Oswego, Labette county, Kansas, for one year beginning November 15,1881, and ending November 15, 1882. The business, though belonging wholly and exclusively to Beyle, and Beid being merely a clerk or agent of Beyle, was, nevertheless, to be carried on in the name of' Beid, and Beid was to keep accurate books of account relating to the business. The business was in fact carried on by Beid,. as agreed by the parties, up to about August 20,1882, (in fact August 12, 1882,) and Beid “did keep books of account and do all things necessary in and about the carrying on of such business in his own name;” and he did “sell large amounts-
The defendant answered, admitting the employment, and alleging, among other things, that he had properly performed all things on his part which he was required to perform; that the plaintiff was to pay him a salary of $1,000 for the year’s employment; that he had expended large sums of money of his own in carrying on said business; that he and the plaintiff had a settlement on July 1, 1882, with respect to all these matters; that the plaintiff wrongfully discharged the defendant from his employment on August 20, 1882; and that the defendant has been unable to procure employment since; and prayed, among other things, for an accounting, and that he should have judgment against the plaintiff for any balance found due him, and for costs. The plaintiff replied to this answer by filing a general denial.
The case was referred to a single referee, who tried the case and made special findings of fact and law, upon which findings the court rendered judgment in favor of the defendant and against the plaintiff for the sum of $291.66 and costs, and ordered that all books, notes, accounts, etc., belonging to the business, (and which were then in the hands of a receiver,) be delivered to the plaintiff. The plaintiff, not being satisfied with this judgment, brings the ease to this court and asks for a reversal thereof.
Before proceeding to the consideration of the question raised by counsel, it would perhaps be well to state some additional
“C. A. Reid agrees to serve F. Beyle as a clerk in the store or stores of F. Beyle, in the town of Oswego, Kansas, for the period of one year, commencing on the 15th day of November, 1881, and ending on the 15th day of November, 1882, and during said time diligently and faithfully to apply himself and to perform the duties of clerk, to look after and seek the interest of the said F. Beyle.
“And F. Beyle agrees to pay the said C. A. Reid the sum of one thousand dollars ($1,000) per year, in monthly payments.
“This contract expires if F. Beyle should sell out before twelve months.
“Done at Carthage and Oswego, this 9th day of November, 1881.
C. A. Reid. (Seal.)
F. Beyle. (Seal.)
“Witness: H. Gr. Miller.”
On the trial the plaintiff was a witness in his own behalf, and the record shows that his counsel asked him the following questions. That the following objections were made thereto; and that the referee sustained each of the objections. The said questions, objections and rulings are as follows:
1. “Q. What, if anything, was the arrangement with Reid as to money? — Objected to by defendant as incompetent and not the best evidence; sustained, and plaintiff excepts.
2. “Q,. How much money did he [Reid] pay out for the*117 first purchase? — Objected to by defendant, because the books are the best evidence; sustained, and excepted to by plaintiff.”
I. We think the referee erred with reference to both these questions. No objection was raised with regard to the form of the questions; but the objections were merely that the evidence to be elici.ted by the first question was “incompetent and not the best evidence;” and the evidence to be elicited by the second question was not competent because “ the books are th e best evidence.” Now it was certainly proper for the plaintiff to prove the entire arrangement between himself and the defendant with respect to the furniture business which the defendant was to carry on for the plaintiff in the defendant’s name; and, as the entire arrangement rested in parol, it could be proved only by parol evidence. We think the evidence was competent, and that no better evidence could have been produced.
II. As to the second question, we would think the books were not the best evidence, although they may have been competent evidence. The fact of paying the purchase-money for the first purchase of goods must have existed before any record of the same could have been made on the books; and direct evidence of such payment by a person who saw the same would be original evidence, and not secondary evidence. Entries made in books, whether true or false, could not be better evidence of the amount of the money paid than the evidence of the person who had actual knowledge of the payment. It is not necessary to decide in this case whether the refusal to permit this evidence to be introduced was a material error, or not.
III. The record also shows that the defendant turned over the books belonging to the furniture business to a receiver, and that all these books, including a book called the “invoice-book,” were introduced in evidence by the plaintiff. The plaintiff, while testifying as a witness, stated among other things that some of the original invoices were written with an indelible pencil, and that they appeared to have been re
“Defendant moves the court to strike out the invoice-book from the evidence, because plaintiff proves it not the genuine original invoice-book. Motion sustained; plaintiff excepts.”
This ruling of the referee we think was also erroneous, for whether the book was the genuine original invoice-book, or not, it was a book that the defendant had previously turned over to the receiver as an invoice-book, or at least as one of the books belonging to the furniture business; and even if it was a “mere blotter,” as counsel for the defendant in this court calls it, still it would be competent evidence against the defendant who kept it, and who admitted that it was one of the books pertaining to the furniture business.
IV. The record further shows as follows:
“Plaintiff offered to justify his discharge of the defendant by evidence, which was objected to on the ground that the same was inconsistent with the allegations of the petition and not permitted under the reply of the plaintiff.
“This objection was sustained. Plaintiff excepts. Thereupon plaintiff asks leave to amend his reply, which motion was overruled by the referee, on the ground that it was not within his power to permit an amendment; which ruling of the referee plaintiff duly excepted to and excepts.”
We think the referee erred in refusing to permit the plaintiff to justify his discharge of the defendant. The defendant, for a cause of action against the plaintiff, alleged in his answer, among other things, that the plaintiff wrongfully discharged him (the defendant) on August 20,1882, about three months prior to the expiration of his term of service. The plaintiff in his reply denied this; that is, he denied that he wrongfully discharged the defendant, and he certainly had the right to prove that the discharge was not wrongful, by proving that the discharge was justifiable. It devolved upon the defendant to prove that the discharge was wrongful, and the plaintiff had a right to rebut this proof by showing that the discharge was rightful; but the referee refused to permit the
V. There are several other questions presented for consideration in this case; but with the view that we have taken of
The judgment of the court below will be reversed, and the cause remanded for a new trial.
