100 Kan. 361 | Kan. | 1917
The opinion of the court was delivered by
The defendant appeals from a judgment against it for attorney’s fees.
“We will try the case; if judgment goes against you, then you can file your motion for new trial. If there is a reasonable showing made that Mr. Wickwire was not the attorney for the Orient Railroad Company so that that question should go to the jury I would be inclined to grant a new trial.”
The action was tried, judgment was rendered against the defendant, and a new trial was refused. On the hearing of the motion for a new trial it was established that Wickwire was not the attorney or agent of the defendant. Under the evidence, the agency of Wickwire for the defendant was not material. This will more clearly appear from a statement of the facts established on the trial, and which are set' out in another part of this opinion. The defendant’s answer was filed December 21, 1915. On the day of the trial, March 30, 1916, and while a jury was being examined to try the case, the application to verify the answer was made. Even if the
Although Wickwire was not the agent or attorney for the defendant, yet the general solicitor of the defendant referred the plaintiff, for an adjustment of his claim, to the firm with which Wickwire was connected. That adjustment was made and communicated to the defendant’s solicitor, who, by his words and conduct, ratified and approved it and made it the contract and arrangement of the defendant. The facts established by the evidence were those alleged in the petition and proved a cause of action against the defendant. The demurrer to the evidence was rightfully overruled.
*365 “Did the plaintiff in this action, and John A. Eaton, the general solicitor of The Kansas City, Mexico & Orient Railroad Company, agree upon a settlement of the plaintiff’s claim that is sued on in this action?”
This question was answered in the affirmative. The defendant insists that the special question asked by the court submitted an issue not raised by the pleadings, and that the answer of the jury was contrary to the evidence. It has been shown that the question was warranted by the plaintiff’s evidence and that the question was rightly answered by the jury. The fact established by the question and answer was alleged in the petition. There was no error in submitting that question.
The judgment is affirmed.