112 Kan. 746 | Kan. | 1923
The opinion of the court was delivered by
These were two actions, consolidated, to determine the ownership of certain shares of bank stock formerly owned by the late Charles H. McKee and which in his lifetime he placed in escrow with James H. Elliott.
Plaintiff, who is McKee’s administrator, alleged that the bank stock was delivered to Elliott for safe-keeping; that defendant J. C. McClain wrongfully claimed that Elliott should hold the stock for him, but that plaintiff was uninformed as to the nature of the claims of McClain and Elliott to the bank stock. Plaintiff claimed the right of possession of the stock, and damages.
The defendant Elliott filed four successive answers, in each of the first three of which he alleged that he merely held the bank stock in escrow pursuant to a real-estate contract between Charles H. McKee and the defendant McClain, and that McClain had not relieved him of responsibility as such escrow holder. In these three answers he also briefly pleaded the nature of the business transaction between McKee and McClain which gave rise to the escrow. In Elliott’s fourth answer, he alleged that he was informed and believed that on
The defendant, J. O. McClain, answered, alleging that on November 23,1917, he made a contract with McKee to sell to the latter 80 acres of land for $5,200 and that McKee agreed to'and did pay and deliver to defendant the bank stock at an agreed price of $1,700, and agreed to pay the balance, $3,500, in cash or by assumption of a, mortgage; and that it was verbally agreed between McKee and McClain that if McKee did not perform the bank stock should be forfeited, and that at the time he delivered to McKee a memorandum as follows:
“Hallowell, Kansas, 11/23/1917.
“Received of C. H. McKee One Certificate number 7, for five shares of stock of the Hallowell State Bank. Also one receipt of James H. Elliott for an additional five shares, same to be figured at $1,700.00, and to be deducted from the purchase price of the North Half of North West Quarter, Section three, Township thirty-three, Range Twenty-two, in Cherokee County, Kansas. The balance to be paid or assumed at $3,500.00. I agree to pay all in-' terest to date of the receipt, and 'to pay the tax for the year 1917. This deal is made suhject to the lease for oil now in effect, which I will assign to McKee. Also subject to lease of present tenant. Abstract to be furnished.
' “J. O. McClain.”
St. Joseph, Mo., Mar. 27, 1918.
"Mr. J. 0. McClain, St. Joseph, Mo.
“Dear Sir: “This is to notify you that I have this day decided not to buy the land known as the Porter Else Farm, the sale and purchase of which was contracted between us some time ago. And I hereby instruct James Elliott to return to you all papers, deeds, etc., in his hands. And also ask you to order him to return same to me. Assuring you that there is no bad feeling in the matter on my part. Very truly, C. H. McKee.”
McClain further answered that by such rescission- and failure and default McKee had forfeited the bank stock, and that full title thereto vested in defendant and that he was its owner.
The plaintiff’s reply to Elliott’s answer alleged that McClain had forfeited all rights in-the contract and that he was not in a'position to convey to McKee good title to the land. Plaintiff’s reply to McClain’s answer was to the same effect.
The cause was tried without a jury, and judgment was entered for plaintiff.
The defendants appeal, assigning various errors; but in their brief they say: -
“There is really only one question for this court to determine, and that is whether Charles H. McKee and J. O. McClain on November 23, 1917, entered into a* valid contract for the sale and purchase of the Porter Else farm, and more particularly described in the statement given by McClain to McKee.”
If such is the only question it must be answered in the negative so far as McKee was concerned. If it be true that-on November 27, 1917, the defendant McClain executed and delivered to McKee1, or to Elliott as escrow holder, the written memorandum purporting to have been signed by him, then of course McClain would be bound by its terms. The memorandum bound its maker. (Guthrie v. Anderson, 49 Kan. 416, 419, 30 Pac. 459; Wiley v. Hellen, 83 Kan. 544, 112 Pac. 158.) But it did not bind McKee. He did not sign it. (Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164.) But even if Me-
. “I told him deed to the land would be made b3r J. B. Fink and would be placed in the hands of James H. Elliott for delivery when the abstract had been prepared showing a merchantable title. McKee said that we would delegate James H. Elliott to hold all papers in escrow in the bank at Hallowell, ponding the preparation of the abstract and delivery of the deed.”
But it'was also shown by the records of the register of deeds that this man Fink had conveyed the land to one James Zimmerman by warranty deed dated November 22, 1917, which was the day before the McKee-McClain agreement was made. Defendant Elliott’s testimony was that the deed to Zimmerman was dated March 9, 1918, and that the land was transferred to Zimmerman on that date; but of course this oral testimony as to the date of the deed was not the best evidence and could hardly be given credence in the face of the record.
Plaintiff also produced testimony tending to show that McKee never did deliver the bank stock to McClain but gave it direct to Elliott, the escrow holder:
“My father handed the stock to Elliott and told him to hold it until he looked into it further. He did not say anything about the forfeiture of the stock when he gave it to Elliott.”
Another witness for plaintiff, Dresia, testified that McClain told him that on November 23, 1917, the day the contract for the land was made, he had sold the bank stock to Elliott.
From the foregoing it is clear that plaintiff’s cause of action was
In Elliott’s first, second and third successive answers, filed months apart, he professed to be no more than a mere escrow holder of the bank stock, and his fourth answer was to the same effect. McClain’s deposition in part reads:
“I sold to Elliott the ten shares of bank stock referred to for $1,700. Elliott has paid me at various times nearly all of the $1,700, but to my recollection there is yet an unsettled difference between Elliott and me in reference to the balance due and which could not be finally settled pending the court actions in these cases.”
Elliott himself testified,:
“I paid the $1,700 for this stock at different times. I contracted to purchase it on November 23, 1917. I gave McClain credit.”
On rebuttal the plaintiff showed that Elliott told witness Mc-Caskill:
“The bank commissioner told me not to pay anything out on that (dividends on the bank stock) until it was settled up.”
A witness for plaintiff had asked Elliott if he would turn over the stock if a bond were given him to protect him against McClain, and Elliott answered: “Yes, that is all I want.”
Here then was a fact case, where the plaintiff showed that he, as McKee’s administrator, was the owner of the stock; that the escrow purposes had failed for defect of McClain’s title; that McKee in his lifetime had asserted his right to the return of the stock; that McClain had no right to it, and moreover that he had sold to Elliott whatever color of right to it he had; and that Elliott had pleaded that he had no concern in it except as escrow holder and yet inconsistently he testified that he had acquired it by purchase from McClain.
The trial court’s determination of the disputed facts in issue, being based upon competent and substantial although disputed testimony, is binding on appeal (Lumber Co. v. Workman, 105 Kan. 505, 508, 185 Pac. 288), and here, as there was no jury to be misled by incompetent evidence, the admission of any such incompetent testimony, whether for plaintiff or defendants, will be presumed to have
We note the comment of defendants’ counsel touching the reopening of the case for the purpose of permitting McKee’s son to testify to the conversation between McKee and Elliott at the time the bank stock was placed in Elliott’s custody. They say this testimony was an afterthought. Possibly so, but that did not render it incompetent, nor require the, trial court to disbelieve it, nor did its belated admission constitute any abuse of the trial court’s discretion or create a trial error.
Nothing approaching reversible error is presented, and the judgment is therefore affirmed.