34 Kan. 218 | Kan. | 1885
The opinion of the court was delivered by
L. M. McCrocklin, who is the defendant in error, brought an action in the district court of Sedgwick county against Nelson Davis, who is the plaintiff in error here, alleging that on the 8th day of August, 1881, the defendant, Nelson Davis, and the plaintiff entered into a verbal agreement whereby it was agreed that the defendant should sell to the plaintiff two thousand bushels of shelled corn which should be delivered to the plaintiff upon the cars on the 20th day of August, 1881, and for which the plaintiff should pay, upon delivery, thirty-five cents per bushel. He alleged a demand of the corn and a failure of the defendant to deliver the same, and further alleged that he had been damaged in the sum of $500, for which he prayed judgment. The answer of Davis was a general denial. The plaintiff below obtained a verdict and judgment for $150, with interest, amounting to $169.75; and the defendant brings the case here, and assigns for error the rulings of the court upon the admission of evidence.
In his testimony McCrocklin stated that on the 8th day of August, 1881, he went to Davis’s place for the purpose of buying his corn; that Davis priced his corn to him at thirty-five cents per bushel, and after some talk about the matter, McCrocklin said he wanted to inquire into the condition of the market, and that he would determine and notify Davis at noon sharp of that day whether or not he would take the corn at the price asked; that he immediately communicated with persons at Kansas City relative to the price of corn, and then sent James Dean, who was in his employ, to notify Davis that
The plaintiff produced several witnesses who were neighbors-of the defendant, and who testified in general terms that the defendant admitted having sold his corn to McCrocklin. When it came to the introduction of testimony for the defense, Davis admitted that he had offered to sell the corn on August 8th upon the terms stated by the plaintiff, and also that McCrocklin was to notify him at noon sharp of that day whether the offer would be accepted. But he says that no notice of acceptance was given him upon that day by James Dean or anyone else for the plaintiff. He was then asked if he did not say to his neighbors, who were witnesses, that he had sold his corn to the plaintiff, and he answered that their testimony upon that point was mostly true, and was proceeding to state that he was speaking of another transaction, and to explain under what circumstances he made the admissions, when the plaintiff interposed an objection that the explanation of the witness was that he had reference to a contract other than the one alleged by the plaintiff. The explanation that the defendant desired to make was that in the statements made 'to his neighbors that he had sold his corn to McCrocklin, he did not refer to negotiations between them on the 8th of August, but to a sale which he claimed was made on a subsequent day, by the terms of which the defendant was to sell his corn
For improperly excluding testimony offered by the defendant, the judgment must be reversed, and the cause remanded for a new trial.