10 Kan. 216 | Kan. | 1872
The opinion of the court was delivered by
Defendant in error brought his action in the district court to foreclose a mechanic’s lien, and recovered a judgment against Jacob Madders for $100, and a decree of foreclosure against both Madders and Morgan. A motion for a new trial was made and overruled, a case made, and that case is now presented for our examination. The case shows that it contains all the evidence, but does not show that all the instructions asked, given, or refused, are pre
“August 31,1870. Article of agreement made and entered into this day between John Chappie and Jacob Madders: John Chappie does agree to dig and wall a cellar of the following dimensions: to be 26 ft. long, and 16 ft. wide, and 7 ft. high; to be a foot-and-a-half thick, and to be built of quarried stone, and be done in a good workman-like manner; the wall to be a foot-and-a-half above ground at the highest place; and he agrees to do the work without delay. And the said Jacob Madders of the second part doth agree to pay to the said John Chappie the sum of $125 when the job is completed. Witness our hands and seals. John Chapple.
“ Jacob Madders.”
The petition also alleges that Chapple performed the stipulated work; that he has not received his pay; that Madders was at the time the owner of the land on which the work was done, describing it; that within due time, giving the date, Chapple filed his lien in the office of the clerk of the district court, and that Morgan claimed some interest in the land. This is the substance of the petition; and we think it clearly presents a cause of action. No specific objection is pointed out to it, and we fail to perceive any. The motion
A third point is, that the verdict is against the evidence.
The fourth and main, error, or class of errors complained of, is, the giving of certain instructions, asked by plaintiff, and refusing of some asked by defendants. Upon this the briefs of counsel are full. If we desired to examine any of the abstract questions of law involved in the instructions given and refused, we should find in those briefs abundant authorities and arguments. But suppose after such examination it should appear that some instruction given was incorrect, or one refused was right: would that be decisive of the case, and compel a reversal? For if not, not only would it be a useless labor to make the examination, but an opinion announced would be obiter dictum. We do not know from the record that all- the instructions are there, which were given. There appear none given by the judge of his own motion. All that appear were asked by counsel. We have no right to assume that the case contains all, and upon that assumption affirm that the district court erred. The court having once stated the law correctly is not bound to repeat its instructions, has been frequently decided, and is a proposition which seems pretty thoroughly established by the decisions of this court. We find an instruction refused. It is a correct statement of the law. May not the court have refused, to give it because it had already given one embodying the same proposition? True, there is nothing, to show that it had given such an instruction; but it is equally true there is nothing to show it had not. Nor does the fact that this is a case made, instead of a bill of exceptions, alter the rule. One object, we know, of a case made, an object not always appreciated by counsel, is to reduce the size of the record. It was
Some instructions were given at the instance of plaintiff below which are claimed to be incorrect. The same remarks are not applicable to the giving of instructions as to the refusing. If the law embodied in any charge be incorrect it has gone to the jury, and of course has had its weight. So that even though the case do not purport to contain all the instructions, the giving of one may be such gross error, and have wrought such manifest prejudice, as to compel a reversal. We must therefore examine the instructions given. Yet there is
“ If the jury find from the evidence that defendant Morgan at the time of making said contract stood by and suffered the same to be entered into by plaintiff under the supposition that defendant Madders owned the land, and did not disclose his (said Morgan’s) rights in the premises, and that plaintiff has expended money or labor under said contract, then you will find for plaintiff.”
It would probably not be difficult to point out objections to this, if intended as a full statement of the law applicable. If Morgan was ignorant of plaintiff’s knowledge as to the exact
“An estoppel in pais, in order to become operative in this case, must have been made, first, with intent on the part of Morgan to influence, and second that it did influence plaintiff to perform labor and. furnish material which he would not otherwise have done; and these two things must concur.”
It is evident this presents a new phase of the question, and materially modifies the law as expressed in the previous instructions. It calls the attention of the jury to the good faith of Morgan in the matter, and substantially tells them that unless he acted in bad faith there was no estoppel. It also charges them that unless plaintiff was influenced by the .conduct and representations of Morgan, there was no estoppel. To this extent therefore it limits and restricts the second instruction given as above at plaintiff’s instance. How much further that was restricted, we can only conjecture. Indeed, for aught that appears to the contrary it may have been so far modified as to present the law altogether too favorably for the defendants, and the plaintiff be really the party aggrieved by the instructions. If under these circumstances the judgment should be reversed, it would be for errors which did not exist, and the defendants who had gotten too much in the district court would get more here. We do not ignore the fact that where two contradictory instructions are given this court cannot ordinarily determine upon which the jury
One point more remains. It is objected that sufficient time was not given between the judgment, and special execution. The decree ordered a special execution in ten days if the judgment was not previously paid. As the judgment was for only one hundred dollars, it seems to us that was ample time. The judgment of the district court will be affirmed.