22 Kan. 692 | Kan. | 1879
The opinion of the court was delivered by
This action was originally commenced in the probate court of Miami county, by the plaintiff, Eobert McBratney, against the defendants above named, for moneys had and received by Charles Sims, in his lifetime, belonging to the said McBratney, as attorney’s fees, in the prosecution of the matter of the Miami Indians of Kansas, in the city of Washington, D. C., as follows:
May 12, 1872, cash,.................§170
Dec. 15, 1873, cash,.................175
Nov. 1, 1874, cash,.................950
§1,295
_ # With interest on the respective sums from the dates given.
No pleadings were filed other than a simple statement of an account, in the language just quoted. The probate court disallowed the claim, and McBratney appealed. In the district court, after the plaintiff had rested, a demurrer to the evidence was sustained, and from this ruling plaintiff brings'
“Now the propositions proven by all "the testimony are these: 1. Sims eniployed McBratney. 2. Sims employed plaintiff to influence legislation, and to use his personal influence with senators, members of congress and the heads of executive departments. 3. The pay of plaintiff was contingent upon success.”
Doubtless it was upon this theory that the demurrer was sustained, and while there is abundant testimony to justify such a conclusion, yet we are constrained to think that it does not all tend in that direction. And because it does not, the court was not warranted in withdrawing the case from the jury. It appears that certain matters were pending before the department at Washington, and congress, in which the Miamis were interested, and in these matters Sims was employed by the Indians. To assist Sims, McBratney was employed. The exact terms of the contract and the exact nature of the services performed are in doubt. If all that was contemplated was the preparing of briefs, the making of oral arguments before the department or a committee of either house, the contract was valid and the services legitimate. If
Because the testimony is riot all one -way, the question should have been submitted to a jury, and there was error in sustaining the demurrer.
The judgment will be reversed, and the case remanded for :& new trial.