48 Kan. 197 | Kan. | 1892
Opinion by
Max Rich sued the Northwestern Cattle Company, Benjamin Bird, and J. B. Hundley, in the district court of Cheyenne county, to recover a certificate calling for 20 acres of school land, which he claimed to own under an agreement with the defendants and others, as his share and interest in section 36, of township 3, in range 38, in Cheyenne county, which had been purchased for the purpose of laying out a town7site by a number of parties who were incorporated as the Northwestern Town-site Company. It seems the section had been bought of a party by the name of Bradshaw, who had previously secured it from the state. One hundred and sixty acres in the center of the section were platted as a town-site and named “ Bird City.” The persons
It is first claimed that the court erred in requiring the plaintiff to answer the question, upon cross-examination, whether or not other members of the town company had given a part of their land to the railroad company. "We do not think this was material error. It was alleged that the
It is next urged that the court erred in refusing to allow the plaintiff to answer the question: “ What was the value of this 20 acres at the time he agreed to assign it over?” and the further question: “ What is the value of the land now ? ” We do not see how the value of the land became important or material. The only material question was, whether the plaintiff had sold his interest in the land; and evidence as to its value would throw no light upon that question.
It is next insisted that the court erred in refusing to strike out all of the oral evidence given by the defendant Bird in regard to the purchase óf the land from the plaintiff, when it was disclosed in the evidence that the contract was in writing. This is the most serious question in the case. It was admitted that the plaintiff was entitled to 60 acres of the unplatted portion of the section. It was alleged in the answer that the defendant Benjamin Bird bought such interest and paid him therefor the sum of $2,500. The evidence of Bird in the first instance was to the effect that the contract for the purchase of the plaintiff’s interest was verbal; but when his attention was called to the fact, upon cross-examination, that there was a written contract, and it was exhibited, he acknowledged that it was the contract. He said: “That is my signature, and that is the contract. It is in accordance with what I have stated. I made him sign the contract before I sent the sight draft.” When asked if all the land he purchased was included in that contract, he answered: “I suppose so, if it was written at that time; it might have been written before that; I don’t know.” The only explanation he made when the written contract was read in evidence was, that he 'had the other 40 already, but made no statement as to when he had purchased it. There was no evidence as to any other purchase or other consideration paid than the $2,500
It is recommended that the judgment of the district court be reversed, and that a new trial be granted.
By the Court: It is so ordered. •