38 Kan. 274 | Kan. | 1888
Opinion by
This was an action brought by the plaintiff in error against the defendant in error upon two-promissory notes executed by the defendant in favor of Nixon Elliott. Plaintiff alleged that before said notes became due,. Nixon Elliott indorsed and for value transferred said notes to E. J. Elliott, and afterward, and before due, E. J. Elliott indorsed and for value transferred the notes to plaintiff, and that he was the owner and holder thereof. The defendant in an
Plaintiff in error at the trial prepared and requested the court to submit to the jury the following questions of fact:
“1. When were the notes in suit in this ease transferred to E. J. Elliott?
*276 “2. What did E. J. Elliott give or pay Nixon Elliott for the notes sued on in this case ?
“3. When did E. J. Elliott make a trade with Nixon Elliott for the notes sued on in this case?
“4. At the time E. J. Elliott traded with Nixon Elliott for the notes sued on, had she any notice of any kind or character of any defenses to said notes or any part thereof?
“5. If you answer the last question in the affirmative, then you may state particularly what notice she did have, and in what way or manner she acquired such notice?
“ 6. You may state the names of all the persons that owned any interest in the nursery stock delivered by defendant to Nixon Elliott in the years 1879, 1880, 1881, and 1882, and state the interest that each had therein ?”
The court refused to submit said questions to the jury, except those numbered 2 and 6, and this refusal the plaintiff assigns as error. The record does not show what answer the jury returned to the two questions submitted. It is the right of litigants to have submitted to the jury every question of fact upon which the jury, by the issues and evidence, are required to find; and it is the duty of a court to submit such questions upon the request of either party; but this broad rule or right includes only such questions as are competent under the pleadings and evidence, which competency must be determined by the court. In this case, the questions which the court refused to submit assumed that certain facts existed; in other words, they assumed that the notes had been transferred to E. J. Elliott, and their only inquiry was as to when they were transferred. This was assuming as true a fact that was in dispute, and one of the principal questions to be determined in this suit. This question was properly refused. Question No. 2 was submitted. No. 3 was a repetition of the facts set forth in No. 2. If the jury answered the second one — and for the purposes of this inquiry we must presume that they were answered in harmony with the general verdict — and if this be true, then their answer to No. 2 was that E. J. Elliott did not give or pay Nixon Elliott anything for the notes sued on in this case. If this was true, then this was a complete answer to No.'3, because if she gave nothing, then she made
The only other objections urged by the plaintiff in error are, first, that the court improperly instructed the jury; but we have examined the record, and find that there were no exceptions saved to the instructions of the court, and therefore this objection must be disregarded.
As a last objection, the plaintiff insists that the verdict was not sustained by the evidence. This question has been so often presented and so often decided by this court that it requires no argument. Here was a question of fact in dispute. Every question presented by the issues was disputed on one side or the other. Evidence was offered on these questions. It was the duty of the jury to find the facts, and when disputed questions of fact are submitted to the jury their verdict thereon is conclusive.
We see no errors in the record, and therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.