27 Kan. 177 | Kan. | 1882
Lead Opinion
The opinion of the court was delivered by
On the 14th day of June, 1880, the plaintiff in error filed its bill of particulars before a justice of the peace of Dickinson county, to recover of the defendant in error the sum of $10 upon a written contract, dated October 23, 1879, of which the following is a copy:
To the Bird & Mieltle Map Company: Please make for each of Us whose names are hereafter annexed one copy of a map of Dickinson county, Kansas, for which we agree to pay to your order the sum of ten dollars per copy for the same when delivered at our respective residences or places of business:
Name. Date. Post Office. Business. S. T. R.
L. Jones.. 10-23.. Enterprise.........j Farmer and stock raiser.. 15-15-3.
Judgment was taken for plaintiff by default, before the justice, and afterward the defendant appealed to the district court. The case was heard there by the court with a jury, and a verdict returned for the defendant. The jury found upon the particular questions of fact submitted to them as follows:
“1. Did the defendant execute the order sued on in this case? Yes. ’ .
“2. Was the printing now on the order there at the time the defendant executed the same? Yes.
“3. Can the defendant read English print? No evidence.
“4.‘Was the map delivered to the defendant according to the terms expressed in said order? Yes.
“5. Was there fraud on the part of the .plaintiff in obtain-' ing defendant’s execution of said order? Yes.”
Judgment was rendered for the defendant, and plaintiff brings the case here for a rehearing.
“The Bird & Mickle Map Company, Plaintiff, v. L. Jones, Defendant. — Comes now L. Jones, defendant herein, who, being duly sworn, on oath says, that he never signed or executed the instrument sued on by plaintiff, as he verily believes. Lowrby Jones.
“Subscribed and sworn to before me, this 26th day of March, 1881. A. S. Davidson, Clerk.”
At the time this paper was filed, it had indorsed thereon the words and figures following:
“Bird & Mickle Map Co. v. L. Jones. Answer filed March 26, 1881. A. S. Davidson, Clerk.”
Upon' the trial, plaintiff objected to any of the evidence being admitted, excepting such as proved directly that the defendant did not sign the order sued on; this upon the theory that the affidavit .was the sole defense, and that nothing should be admitted excepting to show the defendant did not sign'the order. We think the evidence objected to admissible, even upon the' defense of the non-execution of the instrument, because the conversation testified to occurred immediately at the time the defendant signed the paper, and was a part of the res gestee of the transaction. While the conversation had with the agent tended to show that the defendant’s signature was taken, yet it also tended to show that no order or contract was signed, but merely that the defendant’s name was written upon a slip of paper so that the agent might get his name right upon the map.
The final objection of any merit is, that the court refused to require the jury to answer the question submitted, “Can the defendant read English print?” To this the jury replied, “No evidence.” Counsel for plaintiff in error refer us to a page of the record in which they say there is positive evidence that this answer was false. We have examined the page referred to, and find no evidence in regard to the question. We do find, however, upon another page of the record, that when the defendant was about to be examined, he was requested to look at the paper sued on, and asked to read it. We also find tliat he then testified, after holding it in his
The judgment of the district court must be affirmed.
Concurrence Opinion
I concur in the judgment in this case, but am not prepared to indorse all the views expressed by the Chief Justice in the opinion.
Concurrence Opinion
I concur in the judgment of affirmance, but can hardly say that I concur in all that is said in the opinion and syllabus of the Chief Justice.