52 Kan. 371 | Kan. | 1893
The opinion of the court was delivered by
Numerous errors are alleged, but as many of them are trivial and unimportant, we refer to three only.
I. It is insisted that the trial court erred in permitting agency to be shown by the declarations of Mr. Bish, an alleged agent. This was in no wise prejudicial; because, although Mr. Bish was the assistant cashier of the First National Bank, at Garden City, yet he is the party who received the note from Johnson, the payee, in the presence of John J. Munger, with the following memorandum or indorsement attached thereto: “Accept order on Borders Town Company, and turn over note to J. J. Munger.” Whether he was agent of the Norwegian Plow Company is immaterial.
II. It is next insisted, that the trial court erred in admitting in evidence two lettens from the Norwegian Plow Company. It appears from the record that Mr. Patton was officially connected with the First National Bank, at Garden City, and that, as an officer of the bank, he had collections to make for the company. He corresponded through the mails with that company, which was located at Dubuque, Iowa, relative to the $325 warrant, or order, of the Borders Town Company, referred to in the memorandum. In answer, he received the letters by mail, purporting to come from the company, and dictated by C. W. Mitchell, as the secretary of the company, but written with a typewriter. Under these circumstances, there was a sufficient identification of the letters to permit them to be introduced as prima facie evidence.
III. It is further insisted, that the tender of $325 and interest in an order of the Borders Town Company was not sufficient for a return of the note. The note was dated November 3, 1887. It was due 30 days after date. This action was commenced on the 20th of December, 1888. Some time in January, 1889, in accordance with the memorandum on the note, an order of the Borders Town Company was offered to take up the note. When the answer was filed, on the 15th of May, 1889, this tender was renewed, and the order of the Borders Town Company deposited in court for the plaintiff. It was decided in Logan v. Hartwell, 5 Kas. 649:
“Where an answer admits a certain amount to be due the plaintiff, and where the sum is paid into court upon the filing thereof, and where upon the trial the plaintiff does not show himself to be entitled to a greater amount, judgment should be rendered for plaintiff for only the costs accruing up to the filing of the answer.”
“The note copied in the petition was executed by the defendants on the 3d day of November, 1887. The note was executed by Munger and Desky to secure the plaintiff until an order on the Borders Town Company could be procured. The Borders Town Company was the party beneficially interested. The note and the memorandum of the cotemporaneous agreement were executed at the same time. The note remained in possession of the Norwegian Plow Company until the order from the Borders Town Company was procured and tendered in exchange, according to the agreement evidenced by the memorandum. The indorsement on the note (the memorandum) was in substance, ‘Accept order on Borders Town Company, and turn note over to J. J. Munger/ The agreement which was evidenced by this indorsement was in substance: ‘That the note should be held by Mr. Bish until the order could be procured, and was then to be turned over to Mr. Munger, on the tendering of such order/ The note never went into innocent hands. Defendant Munger was not indebted to John Johnson in any sum whatever at the time of giving the note in question/’
Although the order of the Borders Town Company was not tendered until after the commencement of this action, yet upon the findings of fact, supported by the evidence, the plow company was not entitled to anything but that order, and the costs accruing up to the tender. It seems, however, that the attention of the court below was not directed to the question of costs, and no motion was made to retax the costs. ■
The judgment of the district court will therefore be affirmed.
