120 Kan. 474 | Kan. | 1926
The opinion of the court was delivered by
J. L. Finley sued L. C. Pierce and J. W. Dorsey DeGood, partners, doing business under the name of the St. Francis Milling Company, to recover $128.14, the value of three loads of corn which Finley had purchased from John H. Johnson, and which had been delivered to the milling company for him. Verdict and judgment were given in favor of plaintiff and defendants appeal.
The testimony on which the verdict was based tends to show that Johnson had a quantity of corn for sale estimated to be from 1,200 to 1,400 bushels; that he sold it to Finley at the current prices on the days when delivery was made, and that it was to be delivered to the mill of the defendants for him. When the first load was delivered a sale ticket was made out in the name of Johnson, but it was transferred at once to plaintiff, and it was arranged that plaintiff was to have the tickets for the corn sold made out in his name with the price marked on the ticket. That was done with all
The first error assigned by the defendants is to the admission of testimony by Johnson to the effect that he had sold all of his corn to plaintiff. It is said that this was a conclusion, and should have been excluded. It was a collective fact made up in part of primary facts and circumstances, but many ultimate facts of this character
Other objections of a similar nature are presented, but nothing material is found in them.
There was an objection to the order of proof, in that certain evidence was presented on rebuttal instead of in chief. The order in which the evidence was offered is deemed to be unimportant since it was a matter largely in the discretion of the trial court, and unless an abuse of discretion is disclosed there is no ground for complaint. (McBride v. Steinweden, 72 Kan. 508, 83 Pac. 822; State, ex rel. v. Stout, 101 Kan. 600, 168 Pac. 853.) The court may even go to the extent of reopening a case and permitting the introduction of evidence at that time without an abuse of discretion. (Davies v. Lutz, 110 Kan. 657, 205 Pac. 637; Heck v. Quindaro Township, 113 Kan. 647, 216 Pac. 293.)
An objection is made to the refusal to submit evidence of Pierce to the effect that he knew Johnson raised com in the year 1923. This testimony would have shed no light on the issues in the case; besides later when he was asked about driving by the farm and had thus acquired knowledge of the existence of the crop, it was disclosed that he did not see the crop.
The exclusion of the testimony that Felzien had a chattel mortgage given by Johnson which was not of record is assigned as error. It proved to be a mortgage on the crop of 1921, and of course had no application to the crop of 1923. No error was committed in its exclusion.
There is complaint of a statement by the court while making a ruling on testimony, but in no sense can it be regarded as ground for a reversal.
Criticisms are made of instructions given and of some refused, but an examination of them satisfies us that nothing approaching error can be based on the objections, nor do they warrant the reproduction of the instructions and a discussion of them. Some other •objections are made, but they are not deemed to be material. The evidence sustains the verdict and judgment, and no reason is seen for setting them aside.
The judgment is affirmed.