92 Kan. 313 | Kan. | 1914
The opinion of the court was delivered by
The plaintiff is the daughter of Samuel and Permelia Slater. In 1872, when she was two years old, her mother died. H. P. Bishop and Catherine Bishop, his wife, were living at Holton at the time; they were about 40 years of age and had no children. They entered into a written contract with the father of the plaintiff by the terms of which they were to take the plaintiff as their own child, educate and provide for her, and at their death she was to have all their property; she was. to take the name of Bishop, and it was agreed that her father, brothers and sisters were not to disclose their identity until she was grown. She lived with the Bishops as their child and never knew that she was not their daughter until she was past nineteen years of age. Soon after this she was married under the name of Bishop. H. P. Bishop died intestate in 1892. His widow, Catherine Bishop, sometime thereafter conveyed to plaintiff the home consisting of two lots in Holton and the household goods. Catherine Bishop died in 1911, being at the time the owner of considerable personal property, consisting of moneys, 'notes, bonds and mortgages. She had made a will devising all her property to the defendants, who are her relatives. The will was probated and an administrator of her estate appointed by the probate court. Plaintiff brought this action for specific performance of the contract.
In addition to a general denial, the answer alleged that there never had been any contract to make the plaintiff the legal heir of the Bishops but that she was taken by them to be raised as their child; that the Bishops had expended large sums of money in educat
The principal error complained of is that the court erred in permitting the plaintiff’s father to testify to the contents of the written contract without a sufficient foundation for secondary evidence. The plaintiff testified that she had read the contract and had possession of it when she was 19 years old. She also testified:
“I put it in my desk; my furniture was shipped to Texas and it was lost in it; never saw furniture again; it was in drawer; have not seen contract since; got it from my mother, Mrs. Bishop.”
Among the cases cited is C. K. & N. Rly. Co. v. Brown, 44 Kan. 384, 24 Pac. 497. In that case it was stated in the opinion that no evidence had been offered tending to show that the writings had been lost or destroyed or that any search had ever been made for them. The evidence here shows the loss of the contract, and moreover a loss under such circumstances that it would seem to have been useless to make any search. We think the same rule should apply as where a paper is shown 'to have been lost in the mails. In such a case it has been held that proof of the loss is sufficient to let in secondary evidence. (Shaw v. Pershing, 57 Mo. 416.) However, it appears that no objection was made to the testimony on the ground that a sufficient foundation had not been laid, nor was plaintiff cross-examined on the subject. Her statement that the- contract was lost when the furniture was shipped to Texas seems not to have been questioned on the trial. The only objection to the testimony as to the contents of the writing was that it was incompetent. The objection was properly overruled.
We think the testimony was sufficient to sustain the finding of the court that the contract was made substantially as claimed, and that the'plaintiff had fully complied with its terms and was entitled to specific performance.
The judgment is affirmed.