17 Kan. 256 | Kan. | 1876
The opinion of the court was delivered by
This was an action brought by the First National Bank of Eldorado, Kansas, against the maker and indorsers of the following promissory note:
“$1,000. Eldorado, Kansas, March 21st, 1874.
“ Six months after date, for value received, I promise to pay to the order of Waitman F. Joseph; the sum of one thousand dollars, at the First National Bank of Eldorado, in Eldorado, Kansas, with interest from maturity at the rate of 12 per cent, per annum. And I further agree to pay a reasonable attorney-fee if suit shall be instituted to enforce the payment hereof.
“No. 3216. Due Sept. 21st 1874. D. J. Lobdell.”
Upon the back of which note was indorsed the names of “Waitman F. Joseph,” and “Henry Comstock, Jr.”
■5. Jury may return and ask further instructions. After the jury retired for deliberation a disagreement arose between them, and they were properly returned into court, when the court gave them other and further instructions. Now there is nothing wrong in this in and of itself. (Gen. Stat. 683, § 280.) But it is claimed that the court did not confine itself as strictly as it should have done to the matter in dispute between the members of the jury. We think it did. The court however must in such a case be allowed a little latitude, and be allowed to exercise a little discretion. But it is claimed that the court at this time erred in instructing the jury as follows: “If it is proved to your satisfaction, that the signatures on the back of the note are genuine, the variance between Gossard and Eix is immaterial.” The variance referred to related simply to how much of the note was in blank at the time when it was brought to the bank for negotiation; and we think the variance was wholly immaterial. It was wholly immaterial, with respect to this question, whether Gossard or Eix was correct, or whether either was strictly correct. This subject has already been sufficiently discussed in this opinion. The said instruction was not erroneous, and we do not think that any of the other instructions given at this time were erroneous. • Besides, none of these instructions were excepted to, and no objection was made to their being given.
It is also claimed that the verdict is not sustained by sufficient evidence. We think it is; and besides, the record does not show affirmatively that all the evidence has been brought to this court.
The judgment of the court below must be affirmed.