60 P. 1060 | Kan. | 1900
The opinion of the court was delivered by
This was an action brought by S. M. Heller against Garden City on a tree-planting contract, the validity of which was considered by this court in 1897. (Heller v. City of Garden City, 58 Kan. 263, 48 Pac. 841.) The legal questions which arose on the pleadings, as to the right of the city to contract for the planting of trees on the streets and public grounds, and the liability of the city to the contractor where it repudiated the contract and refused to make assessments against the abutting property, were then fully determined. The case was remanded, and after a trial before a jury a judgment against the city for $33,-394.03 was rendered, and the points on this proceeding for reversal are mainly questions of practice which arose in the course of the trial.
“ It has frequently been held that another rule prevails when the witness, after examining the memorandum, cannot testify to an existing knowledge of the fact, independenly of the memorandum, but can testify that, at or about the time the writing was made, he knew of its contents and of their truth or accuracy. In such cases, both the testimony of the witness and the contents of the memoranda are held admissible. ‘ The two are the equivalent of a present positive statement of the witness, affirming the truth of the contents of the memorandum.’ ” (2 Rice, Ev. 748 ; 1 Thomp. Trials, 365.)
The further complaint that these voluminous records were not read to the jury is not entitled to much consideration. The results were proved by the witnesses and the records were before the jury and opposite counsel for any necessary purpose, and so that counsel in their argument to the jury might read therefrom, pointing out any inconsistency or weakness that there was in the proof. The production of the tree records was necessary to show that the contractor had complied with the contract in the matter of preparing and submitting such record, and, having been presented to the jury, they could make such personal investigation as was deemed necessary. No good reasons are given for the objections to the other exhibits, and no material testimony of this character was received to the prejudice of the defendant.
No other of the objections to rulings upon the testimony appears to require special attention.
Another question raised on the instructions to the jury related to the kind of trees authorized by the contract. In the first part of the contract the varieties of trees to be planted are specifically named, and afterward the parties refer to “such” trees as had been named, and then, parenthetically, undertake to name them again, but, evidently through a mistake of the scrivener, some of the varieties first named were omitted; and it is contended that the planting of trees of the classes not named within the parentheses is to be treated as a breach of the contract. Reading the whole contract together, it appears to have been the
Exceptions were taken to a great number of the rulings upon instructions refused and given. Some relate to matters which were not of the essence of the contract nor within the issues, to matters already stated to the jury, or to matters which were improper or immaterial, but are not deemed to be such as to require special discussion. The case appears to have been fairly submitted to the jury, and we discover no just cause for complaint against the instructions.
In our opinion, no error was committed in refusing to require the jury to answer special questions more fully and specifically.
After an examination of the numerous assignments of error, not all of which have been mentioned, we find no substantial ground for interfering with the result that has been reached. The judgment will be affirmed.-