75 P. 121 | Kan. | 1904
The opinion of the court was delivered by
The plaintiff sued the defendant for the value of wheat which he had stored in the defendant’s elevator, and which the defendant sold. He alleged an express contract covering the terms of the transaction. The defendant admitted the storage of the wheat and its sale, and claimed the relations of the parties were fixed by an express agreement, but the contract he proposed differed in certain material respects from that for which the plaintiff contended. At the trial'the defendant offered^ evidence of a custom among elevator men of the locality relating to the disputed items of the contract. The court rejected the evidence, and its ruling upon' that subject is assigned as error.
The defendant claims that the custom was identical with his version of the contract; that evidence of it would have corroborated his testimony as to what the agreement was, and that it would have furnished a basis for the adjustment of the differences between the parties in case the jury found that their minds had not met. The claim of error is predicated upon the refusal of the court to permit certain questions to be answered. Favorable answers to all the questions propounded would not have shown that the plaintiff knew of the claimed custom, or that it was so notorious as to furnish a presumption of knowledge. No
At the trial the defendant admitted that he did not keep on hand at the place of storage in Abbyville, in Reno county, a quantity of wheat like in kind and quality to that of the plaintiff's sufficient to meet the plaintiff's demands, and, for the purpose of enabling him to collect storage charges, offered to show that he had wheat in a Topeka elevator with which to satisfy his contract with the plaintiff. This offer the court rejected, and its ruling is assigned as error.
The contract of the parties had reference solely to the place of storage selected by the owner of the wheat. The character of the warehouse structure,
Pending the litigation the parties made an effort to compose their difficulties, and did agree upon a basis of settlement which they embodied in two written instruments. In a supplemental answer the defendant pleaded a balance due him, ascertained and agreed to, under the instruments referred to, while the plaintiff, in a supplemental reply, repudiated the settlement altogether. Upon these pleadings and the evidence several theories of the case were tenable. The court instructed the jury upon all phases of the controversy and many of these instructions are assailed as erroneous. It is not necessary to discuss at length the questions raised. Both the evidence and the instructions have been carefully examined and the instructions appear tp be unimpeachable. The chief argument of the defendant against them seems to overlook the fact that the witness he called to prove the computation made upon the written basis of settlement, and to prove the balance ascertained by such computation,
None of the assignments of error is well grounded,, and the judgment of the district court is affirmed.