25 Kan. 492 | Kan. | 1881
The opinion of the court was delivered by
This was an action of replevin, brought by H. H. Warner against C. C. Fleck, to recover an iron fire-proof safe. The action was commenced before a justice of the peace, where judgment was rendered in favor of the plaintiff and against the defendant. The defendant then took the ease to the district court on petition in error, where the judgment of the justice of the peace was affirmed; and the defendant now, as plaintiff in error, brings the case to this court. The defendant, as plaintiff in error, makes four principal points in his brief, which we shall consider in their order.
I. The legal question involved in the first point made by the plaintiff in error has been decided by this court in the case of Starr v. Hinshaw, 23 Kas. 532, and it is not necessary to further consider that question.
II. The plaintiff in error claims that the justice of the peace erred in refusing to permit the plaintiff in error (defendant below) to ask the witness Lovitt, on cross-examination, the following question, to wit: “Did Fleck offer to give up the safe if you would allow him what he had paid on it?” This question was objected to by the plaintiff “as not proper on cross-examination, and not material, and incompetent.” The court sustained the objection, and did not permit the question to be answered. We think there was no error in this. The evidence intended to be obtained by this question was wholly immaterial. It appears from the evidence that
We think it will be seen from the foregoing facts that the question, with its answer, was wholly immaterial. There was nothing in the agreement between the parties which required that the plaintiff should pay or tender to the defendant anything, after default on the part of the defendant, before the plaintiff should be entitled to the possession of the property. Besides, it would probably be inequitable that the plaintiff should pay back all that he had received from the defendant before being entitled to a return of the property; for the defendant at the time this demand was made had then had the use of the property for nearly one and one-half years. The plaintiff was entitled to the possession of the property without paying back anything to the defendant; and whether the defendant should ever receive anything back, or should be paid anything for what he had already paid to the plaintiff, is a question for further consideration. At the time of the demand the title to the property was in the plaintiff, and he also had the right to the possession thereof. Whether the plaintiff held this title and the right of possession merely as a security for the amount of the debt which the defendant still owed the plaintiff, or whether the property became absolutely the plaintiff’s, and the debt from the defendant to the
III. We think that the justice of the peace did not err in overruling the demurrer to the evidence. The evidence was amply sufficient to sustain the plaintiff’s cause of action. The evidence, prima facie, showed, that the property was worth all that the justice found it to be worth'. The defendant himself admitted by his purchase of the property that it was worth over $120, while the justice found it to be worth only $100.
IV. We do not think that the district court erred so far as it sustained the judgment of the justice of the peace; and if it erred in modifying the judgment, the modification was in favor of the defendant below, (plaintiff in error,) and therefore the plaintiff in error has no cause for complaint in this court.
The judgment of the court below will be affirmed.