Locke v. Hedrick

24 Kan. 763 | Kan. | 1881

The opinion of the court was delivered by

Horton, C. J.:

Action of replevin by plaintiffs in error against defendants in error, to recover possession of certain goods and chattels used in furnishing the Reeves house, in Nickerson. Plaintiffs claimed ownership under a bill of sale purporting to have been executed to them on July 15, 1879,. by William Pointer, of the firm of Pointer & Williams, keepers of the hotel. Defendants in error were in possession of the property under a writ of attachment in favor of G. W. Todd .& Co. against Pointer & Williams. G. W. Todd & Co. were creditors of the latter firm, and in an action to recover their claim, sued out an attachment. Notwithstanding the alleged sale to plaintiffs, such sale was unaccompanied by a change' of possession of the property. The controversy in the court below was, whether the sale was made in good faith and upon sufficient consideration.

The case-made states that there was an offer to prove by A. J. Locke, one of the plaintiffs, as a reason for not taking possession of the goods, “that several railroad men board-’ ing in the hotel came to him and begged him not to turn them out, saying they could not at that time get shelter for their families in any other house in Nickerson.” This évidence was excluded, and we think improperly. The plaintiffs were required to supplement the bill of sale with proof of good faith and payment of value. (K. P. Rly. Co. v. Couse, 17 Kas. 572.) As good faith was as essential as payment of value, all evidence tending to prove good faith in the alleged purchase was pertinent to the issue,-and ought to have been admitted. The rejected evidence tended to explain the conduct of plaintiffs in not taking actual possession of the property; it- tended to show that such possession was not taken, solely to accommodate the boarders at-the hotel, who declared they could not get shelter for their families at that time' in any other house in Nickerson, and thereby tended to establish the good faith of the sale. Such evidence was not hearsay, as it was not offered to prove as a fact that the boarder's at the hotel could not get shelter in the town outside of the hotel, but to show that the plaintiffs acted upon the declarations of boarders in the hotel in not taking actual possession. It was immaterial to the inquiry whether the declarations' were true or false. The plaintiffs claim that such declarations were made, and that they acted upon them. They had the right to show that the declarations were made, and that they acted upon the’m. In this view, the declarations became original evidence, and were competent. Their rejection was material error.

Another question of evidence is presented. On the. part of defendants, one R. L. Yeager testified, over the objection of plaintiffs, “that at the time of the levy, Pointer was in the office of the hotel and seemed and acted as if he had charge and custody of the house,' and seemed to be as much interested and excited as the plaintiffs in this case.” The admission of this testimony was no ground for exception. To a certain extent, it may be said the evidence was the opinion or judgment of the witness founded upon conduct, language or appearances not detailed; yet such opinion was derived from having observed the relations and conduct of the person in the actual possession of the property and one of the plaintiffs, which would have been difficult and perhaps impossible to detail to the jury; and it is evident that the facts upon which the witness expressed his judgment were such as men in general are capable of comprehending and understanding. Testimony must occasionally be a compound of fact and opinion, and the evidence objected to may be characterized as of that nature. (The State v. Stackhouse, ante, p. 453; Commonwealth v. Sturtevant, 117 Mass. 122; Calvin v. Dwight, 6 Gray, 444.)

The other matters submitted may not arise upon another trial, and we need not now express any opinion upon them.

The judgment of the district court is reversed, for the rejection of competent and material evidence, and the cash remanded for a new trial.

All the Justices concurring.