19 Kan. 535 | Kan. | 1878
The opinion of the court was delivered by
The only questions in this case are, whether under the stock-killing law of 1874 proof of demand is essential to a recovery, and if so whether there was such proof. .The first question must be answered in the affirmative, and
The only evidence tending to show a demand in this case is in the following testimony of the plaintiff:
“I am the plaintiff in this case, and had two mules killed by the Kansas Pacific Railway Company on Saturday, either the 23d or 24th of October. I called on Mr. Johnson, the railway agent, and he told me I had better get some one to appraise them. The section-boss selected Mr. Johnson,.and I selected Mr. Entsminger, but they could not agree upon the price of the mules, and so called on Mr. Payne, and they placed the value at $135 for the two.”
Now under a statute like this, imposing an additional burden, and conditioning that burden upon a demand, it seems to us there should be proof of a direct demand. (See cases cited, supra.) And while of course slight evidence will sustain the finding of a court, or the verdict of a jury, yet in this evidence we see no allusion to a demand. All that appears is, that the plaintiff counseled with an agent of the company, and was advised as to the course he should pursue. It does not appear directly or inferentially that the plaintiff demanded payment. If the fact existed, the witness was
The judgment will be reversed, and the case remanded for a new trial.