38 Kan. 228 | Kan. | 1888
The opinion of the court was delivered by
This was an action on a note given in payment for a combined Gale sulky harrow and drill, sold by the Gale Sulky Harrow Manufacturing Company, to Alfred Chinberg, on September 21, 1883. The amount of the note was sixty-five dollars, payable with interest on or before October 1, 1884. The action was tried in the district court on appeal from a justice of the peace. The defenses were, payment, and also a breach of warranty.
Chinberg testified, among other things, that he delivered the note which he gave for the harrow and drill to E. A. Burk, the agent of the manufacturing company from whom he made the purchase; that a few days afterward Burk introduced him to John H. Webb, at McPherson, and stated in the presence of Webb, that he, Webb, was an agent of the Gale Sulky Manufacturing Company; that a few days afterward he saw Burk and Webb again together in McPherson, and talked with them about the harrow he had purchased; that he tried to get them to take it back, but that they refused to do so; that on November 22, 1883, Webb came to his place and said to him that the agents of the company needed money to pay their livery and hotel bills, and if he would take up his note, he could have it for forty dollars; that he
Of these rulings and some others, complaint is made, and we think very properly. The Gale Sulky Harrow Manufacturing Company offered evidence tending to show that Webb ceased to be an agent of the company on October 10, 1883, and that he had no authority to accept or receive payment of the note. The trial court should have permitted the note paid by Chinberg"to be introduced in testimony. The note executed by him was payable to the company or bearer, and if Webb was actually in possession of the note at the time of payment, it was prima fade evidence of his authority to receive payment. (Eggan v. Briggs, 23 Kas. 710.) The fact that Chin-berg’s signature had been torn from the note was no good reason for refusing it as testimony. It should have gone to the jury for what it was worth.
Again, after refusing Chinberg the opportunity to present as a part of his testimony the note which he alleged he had paid, it was error for the trial court to refuse to permit him to put in issue the execution of the note sued on. Evidently Chinberg believed when he paid the forty dollars and received the alleged note from Webb, that he was "taking up the original note executed by him. Only a copy of the original note was attached to the bill of particulars, and when it was attempted to be shown that he had paid forty dollars for a copy which had been in some illegitimate way obtained, he should have been permitted to have had this question fairly put in issue; and therefore it was necessary that the execution.of the note should have been denied under oath.
We think under the circumstances of this case as shown by the record, the court ought to have permitted the amendment. (Gaylord v. Stebbins, 4 Kas. 42.)
As to the other matters alleged in the brief, we refer to Craver v. Hornburg, 26 Kas. 96; Lyon v. Martin, 31 id. 411; Mfg. Co. v. Nicholson, 32 id. 666; Mfg. Co. v. Nicholson, 36 id. 383.
The judgment of the district court will be reversed, and the cause remanded for a new trial.