89 P. 923 | Kan. | 1907
The opinion of the court was delivered by
Two principal questions are presented by the petition in error in this case, one relating to a variance between the pleading and the proof, and the other relating to the admissibility of testimony.
“Plaintiff brought said contract with him to the city of Topeka, and thereafter formally accepted the terms proposed and agreed to sign the same, and afterward, to wit, on the 2d day of March, 1903, the said defendant came to the city of Topeka for the purpose of having said contract signed, and took the contract which had been delivered the plaintiff for the purpose of making a duplicate of the same, and that, upon the same day, the said defendant exhibited to this plaintiff the contract, which they had made, and pretended to sign the same, and the plaintiff at the time, believing that it was the same contract, a duplicate having been taken by the defendant, signed the same, and paid one thousand dollars, as provided by the terms of said contract.
*539 “And afterward the plaintiff discovered that in the signing of said contracts by him and the company that the said defendant had wilfully and fraudulently substituted an entirely different contract from the one agreed upon, written out and accepted by the parties; and, that by reason of such wilful and fraudulent substitution this plaintiff at the time, without any knowledge of the wrongful act on the part of the defendant and believing that the contracts were the ones which had been agreed upon, signed the contract as presented, which limited his territory to the state of Kansas only. That said substituted contract was not the one by him agreed upon, and was not the consideration of the payment by him to said defendant of one thousand dollars, which he paid to the defendant.”
On the trial the plaintiff’s evidence tended to show that Boyle brought with him to Topeka a draft of a contract which had been executed on behalf of the company. This draft Boyle dated in plaintiff’s presence, and delivered to plaintiff as his copy. Plaintiff signed the draft he had brought home from Battle Creek and delivered it to Boyle. Each draft consisted of two unattached sheets of paper, the first containing the description of the territory covered and the second containing the signatures. When the plaintiff signed the draft which he had brought home from Battle Creek its original form remained unchanged. He testified that the substitution in that copy was made after the paper left his hands. But he further testified that the supposed duplicate which Boyle brought to Topeka and delivered to him when he signed the other did not cover Jackson county, Missouri, as he discovered "when he examined it after trouble arose.
The dating of one copy of the contract, the signing of the other, the exchanging of the duplicates, the payment of the money and the delivery of the stock certificate constituted in effect a single transaction, consuming about fifteen minutes of time, and occurred in a room at a hotel.
The plaintiff admitted to be incorrect the statement
It is said the plaintiff undertook to set forth in his petition the precise manner in which the fraud was committed. The first step was, to take the plaintiff’s draft of the contract, ostensibly for the purpose of making a duplicate. The next step was to exhibit a substituted draft as the true one, and to sign it as if genuine. As a result the plaintiff signed a substituted draft. To disprove these allegations the defendant did not need to extend its evidence beyond the time the plaintiff affixed his signature. The defendant’s witnesses lived in Michigan and their testimony had been taken by deposition.
Recognizing the cogency of this argument, the court is inclined, nevertheless, to the view that the discrepancy between the pleading and the proof was not vital and that the defendant’s testimony covered’the point upon which the case necessarily turned. The real specification of fraud was a substitution of documents. The details of the prestidigitation were not important, and the petition need not have, attempted to expose them. In civil actions only the substance of the issue need be proved, and in this case it was proved by showing a state of facts which opened the way to the inference that a substitution had occurred.
It was not important that, instead of taking the plaintiff’s draft of the contract to make a duplicate, Boyle brought with him a copy for use as a duplicate. This spurious duplicate was exhibited to plaintiff as a genuine paper — was actually delivered to him as truthful written evidence of the contract. Boyle did some writing at the time. Although he did not sign, he did fill in a date, thus making the act of writing contribute
There was no dispute in the evidence that the plaintiff was given, at the hotel, the kind of a copy he said he received. The decisive question in the case was if he brought home from Battle Creek, kept in his possession, produced at the hotel, and signed, a different kind of a document. If he did, there could be no doubt of a substitution. If he never had the kind of a paper he claimed he was given at Battle Creek, substitution was impossible. Upon this question the defendant produced all the evidence at its command. From these considerations it follows the variance was not material and the defendant was not misled to its prejudice.
On cross-examination of the plaintiff he was asked if he had not commenced and dismissed a previous suit against the defendant, and he admitted that he had done so. The defendant then introduced in evidence the petition in the former suit, which counted solely upon a failure to perform, and made no reference whatever to any fraudulent substitution. This petition was filed after the date upon which the plaintiff claimed he discovered the fraud which was made the basis of the second suit. Thereupon the plaintiff produced a witness, J. S. Warner, who testified that, at a date between the time the plaintiff returned from Battle Creek and the time Boyle came to Topeka, the plaintiff exhibited to him and asked his advice concerning a contract which he contemplated making with
The defendant claims Warner’s testimony was inadmissible. The introduction in evidence of the plaintiff’s first petition tended to impeach him by showing that he had failed to charge a fraudulent substitution at a time when most likely he would have done so had grounds existed, and to lead to the inference that the fraudulent substitution theory was fabricated subsequently to the commencement of the first suit. The effect of the impeachment was greatly intensified when the defendant later read Boyle’s deposition, wherein he stated there never had been any reference whatever in any of his negotiations with the plaintiff to the inclusion of Jackson county, Missouri, in the contract, and that he had never submitted to the plaintiff any form of contract which included that territory. Under these circumstances the testimony of Warner falls fairly within the scope of the exceptional rule permitting the fortification of an impeached witness by showing consistent claims and statements made and consistent conduct exhibited at a time when their ultimate effect could not in the nature of things have been foreseen. (The State v. Petty, 21 Kan. 54, 59; The State v. McKinney, 31 Kan. 570, 3 Pac. 356; The State v. Hendricks, 32 Kan. 559, 4 Pac. 1050; Cloud County v. Vickers, 62 Kan. 25, 61 Pac. 391; Stirn v. Nelson, 65 Kan. 419, 70 Pac. 355; 2 Wig. Ev. § 1129 et seq.)
The fact that before preliminary negotiations ended the plaintiff had in his possession and submitted to
Some minor claims of error are discussed, but none of them is substantial, and the judgment of the district court is affirmed.