14 Kan. 164 | Kan. | 1875
Lead Opinion
The opinion of the court was delivered by
This action was upon an account for $319.92 for cattle sold and delivered by Newby to Kermeyer. The answer was a general denial, and payment, but on the trial it was admitted that the plaintiff Newby sold and delivered the cattle at the price stated in the petition. The case was tried by the court, who found generally for the plaintiff, thereby finding, in addition to the admitted facts, that payment had not been made. There were no special findings of fact, and no question of law raised for this court, except that the evidence does not sustain the judgment. The conditions upon which this court will reverse a j udgment of the court below on this ground have been too often decided to need statement here. It is only necessary to examine the record to see if there was evidence tending to support the judgment of the court on the want of payment for the cattle. The testimony is in substance as follows: Kermeyer testifies positively that he paid for the cattle in money, and strengthens his testimony by that of witnesses who heard conversations between himself and Newby in which Newby admitted payment either in money or check. On the other hand, Newby testifies that he had taken for the cattle a check on the German Savings bank of Leavenworth which he had lost, and introduces some other testimony tending to strengthen his own, and throw doubts on the testimony of the defendant as to the payment in money. In his testimony the plaintiff used these expressions: Having testified to the sale and delivery of. cattle to defendant at different times, he said,' “ he (defendant) paid me sometimes with checks on the German Savings bank of Leavenworth, and sometimes in cash.” * * *
Concurrence Opinion
I concur in the decision, but rest my judgment on slightly different grounds.