36 Kan. 468 | Kan. | 1887
Opinion by
Defendant in error, plaintiff below, brought his action against plaintiff in error, defendant below, to recover the sum of $600. Plaintiff Reid lived in Missouri, and defendant Rucker in Elk county, Kansas. In 1884, Reid and John B. Rucker, brother of defendant, came to Elk county to look at land, with a view of purchasing, and Reid and John B. Rucker both had some talk about buying a certain tract of land near the home of the defendant. They both returned to Missouri without purchasing, and defendant went to St. Joseph, where the owner of the land resided, and he bought it, paying therefor $1,000. The consideration named in the deed was $1,600. He afterward sold it to plaintiff. So far both parties agree substantially as to the facts.
Further, plaintiff claims that -when he was upon his visit to Elk county, he entered into an agreement with the defendant, whereby the defendant was to buy this land for him of the owner at St. Joseph; that he gave him authority to pur
On the hearing of the case the defendant offered to read the deposition of John B. Rucker, his brother, which had been duly taken by the plaintiff, and the court refused to-allow said deposition to be read. Judgment for plaintiff for $600; motion for a new trial overruled; judgment upon the verdict; defendant seeks a reversal in this court.
The first question that presents itself, is the exclusion of the deposition of John B. Rucker. It was taken by the plaintiff; was not read by him in the opening of his case; the defendant, in the introduction of the testimony in his behalf, offered this deposition in evidence; plaintiff objected to the reading of the same, because it was the evidence of plaintiff taken for the purpose of rebuttal; it was not read by plaintiff. If the testimony sought to be introduced by the deposition was material, we believe it ought to have been admitted and read in evidence. Sec. 357, ch. 80, Comp. Laws of 1879, reads as follows:
“ When a deposition has been once taken, it may be read in any stage of the same action or proceeding, or in any other action or proceeding upon the same matter between the same parties, subject, however, to all such exceptions as may be taken thereto under the provisions of this article.”
There was testimony introduced of the admissions of Rucker that he was the agent of Reid. The deposition of John B. Rucker shows that Reid, after the time that he said he had employed Rucker, the defendant, as his agent, said that he intended to buy the land in question if John B. Rucker did not want it. Such admission of Reid was in the conversation between John B. Rucker and himself, in Missouri, and Reid himself testified to that conversation. It was a version of
There is objection made that the questions asked in the deposition of Reid, being the cross-examination of John B.
Rucker by defendant, were not admissible because they were leading. No such objection was made in the lower court. It will not be considered here.
There are other errors complained of, but none of them require attention. For the error of l’efusing to allow the deposition of Rucker to be read in evidence, we recommend that this case be reversed.