27 Kan. 565 | Kan. | 1882
The opinion of the court was delivered by
This was an action brought by J. C. Smith •■and Frank E. Barnes, partners doing business under the firm-name of Smith & Barnes, against B. F¡ Simpson and Charles B. Jones, for the recovery of $1,605.12 damages, alleged to have been sustained by reason of the defendants’ taking possession of, and converting to their own use, certain goods and ■chattels alleged to have belonged to the. plaintiffs. The real and substantial question, however, that was litigated in the ■case was this: Who was the owner of the goods and chattels alleged to have been taken and converted — Samuel Barnes, or ■the firm of Smith & Barnes? The case was tried in the court below before the court and a jury, and the verdict and judgment were rendered in favor of the plaintiffs and against the ■defendants for the full amount claimed by the plaintiffs; and the defendants, as plaintiffs in error, now bring the case to this court for review.
It appears from the evidence introduced on the trial, that Samuel Barnes and Frank E. Barnes are brothers; that from
It will be seen that the only substantial question presented to the court below was, whether the various transactions had between Samuel Barnes, Frank E. Barnes, Dunscomb & Sea ver and Smith & Barnes were in good faith or not; for, if they were all in good faith, then the plaintiffs in this action,' Smith & Barnes, were the owners of the goods and entitled to recover for their value in this action; but if said-transactions were not in good faith, if in fact they were instituted and carried forward for the purpose of hindering, delaying or defrauding the creditors of Samuel Barnes, then as between the creditors of Samuel Barnes and the above-named persons, Samuel Barnes was the real and legal owner of the goods, and the defendants in this action, Simpson and Jones, are entitled to recover.
The plaintiffs in error, Simpson and Jones, present six principal grounds of alleged error, for which they claim a reversal of the judgment of the court below. We shall consider these alleged grounds of error in their order.
I. The first alleged error is, that the court below refused to strike out of the deposition of Frank E. Barnes that portion which reads as follows: “About the 20th day of October, 1878, the plaintiffs in this case were the absolute owners of the goods mentioned and described in their petition in this-case.” This evidence, we think, was incompetent. It is seldom competent to prove a fact by a simple assertion of the fact itself. And this is especially true where the fact is of a
In the present case the main fact to be proved,' the final and ultimate fact to be ascertained, was whether the plaintiffs owned the property in controversy, or not. If they owned it, they were entitled to recover; but if they did not own it, they were not entitled to recover. It was simply this question of ownership, and nothing else, which the jury wereimpanneled to try. And to allow one of the plaintiffs to testify that the plaintiffs “were the absolute owners” of the property in controversy, was almost the same as permitting the plaintiffs to testify directly to the jury that they {theplaintiffs) were entitled to recover, ' If it is competent for the plaintiffs to testify that they were the absolute owners of the property in controversy, then it would also be competent for the defendants to testify that the plaintiffs were not such owners. Indeed, if it was competent for the plaintiffs to introduce such testimony, then it would be competent for the defendants to introduce witness after witness, and witness after witness to an indefinite number, simply to state as a witness that the plaintiffs “did not own the property” at the time it was attached. The evidence on the one side would be, “We own the property;” and on the other side it would be, “No, you don’t.” We think it is perhaps true, that the ownership of property may sometimes be proved by the direct.statement of the ownership; but it is never true'where the question of ownership is one of the main questions involved in the ease. It is probably true only where the question arises for the first time during the trial, and where the fact of ownership is proved as a minor and subordinate fact, or a collateral and unimportant fact, tending more or less directly or remotely to prove some other fact more directly involved in the issues of the case. Ownership of personal property is usually proved by the fact of prior possession, (proved in a proper manner,)
These persons, Samuel Barnes, and J. C. Smith and Duns-
II. The second alleged error is, that the' court below permitted the plaintiffs below to read in evidence to the jury a certified copy of the chattel mortgage from S. Barnes & Co. to Dunseomb & Seaver. There was no error in this. The defendants, in their answer, had admitted the execution of the chattel mortgage; and besides, their objection to its introduction was simply upon the general grounds that it was “ incompetent, irrelevant, and immaterial.” There was no special objection urged against it, admitting that it was proper evidence for one purpose, but not for another — no suggestion by the defendants that its use should be confined or limited, as evidence of the fact only that the original instrument “was received and filed according to the indorsement of the register thereon.” But the objection was general, as aforesaid, and the attempt was to exclude it for all purposes. Now the certified copy was undoubtedly good evidence, and sufficient evidence, for the purpose of proving that the original instrument “was received and filed according to the indorsement of the register thereon.” (Comp. Laws of 1879, p. 557, § 13.) ■ And ■the court below, under such circumstances, did not err in permitting it to be introduced in evidence.
III. The third alleged error is, that the court below allowed the witness A. D. Haynes to testify as to what “the stock of goods covered by the mortgage consisted of, and where it was
IV. The fourth alleged error is, that the court below permitted the plaintiffs to read in evidence to the jury a letter which the witness J. B. Carson testified he had received from Dunscomb & Seaver. The letter reads as follows:
“Kansas City, Mo., Sept. 12, 1878.
“J'. B. Carson, Esq., Medina, Kansas — Dear Sir: Yours of the 11th is to hand, inclosing sales of same date. We note that they are only $2.05, which is very small. We note that you will send down by express to-day $25, and trust you got it off. We also trust you got off the car of corn. Mr. Kagy will be up in Medina now in a day or so. Yours truly,
Dunscomb & Seaver
This evidence was surely incompetent. Neither Carson, nor Dunscomb, nor Seaver was a party in this case, and neither the defendants Simpson and Jones, nor Dodd, Brown & Co. claimed to hold under Dunscomb & Seaver; but on the contrary, they claimed to hold adversely, and the plaintiffs themselves claimed to hold the goods under Dunscomb & Seaver; and besides, this evidence was Dunscomb & Seaver’s unsworn statement, and was not in disparagement of their title to the goods, but was introduced for the purpose of sustaining it and bolstering it up. As before stated, the defendants claim that all the transactions between Samuel Barnes, Prank E. Barnes, J..C. Smith, Edward Dunscomb and James A. Seaver were fraudulent and void, and that Dunscomb & Seaver never
~V. The fifth alleged error of the court below is, that the court below erred in striking out and excluding from the jury certain portions of the respective depositions of Edward Duns-comb and James A. Seaver. Upon this question, the members of this court are divided. The Chief Justice and Mr. Justice Brewer are of the opinion that no error was committed by the exclusion of said evidence; while in the opinion of the writer of this opinion, error was committed-by the exclusion. These witnesses, Dunscomb and Seaver, as before stated, were the persons who composed the firm of Dunscomb & Seaver, to whom the chattel mortgage, executed by S. Barnes & Co., had been given. This mortgage, the defendants asserted^ was fraudulent and void, and if.it was fraudulent and void, then the plaintiffs’ case must necessarily have failed for the reason that Smith & Barnes could not be innocent purchasers of
The question, then, for our consideration is this: Where depositions have been taken by one party, upon due notice given to the other party, and the depositions have been on file for several months before the commencement of the trial, and no motion is made by the adverse party before the commencement of the trial, attacking the depositions or any part thereof in any manner whatever, and where some of the answers to "questions propounded by the party taking the depositions are not responsive to the questions asked, but are evasive, and state matters not called for by the questions asked, but still the answers, taken in connection with the questions asked, tend to prove some of the issues in the case, may the adverse party, when the party who has taken the depositions offers to read them in evidence, object to such questions and answers and have them stricken out of the depositions and excluded from the jury? Now both Dunscomb and Seaver unquestionably knew whether the transactions had between them and the firms of S. Barnes & Co. and Smith & Barnes were fraudulent or not; and unless they were fraudulent, Dunscomb & Seaver could not have been guilty of any criminal offense or subject to any criminal prosecution because of any connection which they might have had with said transactions; hence their refusal to testify, because it might subject them to a criminal prosecution, was some evidence that the transactions were fraudulent, and therefore the evidence was unquestionably relevant; but was it not also competent? My brethren say not; and they so say upon the authority of 1 Greenleaf’s Evidence, § 450, note 5, and the authorities there cited, to wit: Rose v. Blakemore, Ryan & M. 383; Phelin v. Kenderdine, 20 Pa. St. 354; Carne v. Litchfield, 2 Mich. 340; Boyle v. Wiseman, 29 Eng.
The defendants had a right unquestionably to prove that the transactions were fraudulent, although such evidence might at the same time prove that Dunscomb & Seaver, as well as all the other parties connected with the supposed fraud, were guilty of a criminal offense. And what valid objection can there be for proving the fraud in this manner, where, as in this case, no better evidence could possibly be procured by the defendants from these witnesses ? And the defendants should not be required to call the plaintiffs and Samuel Barnes as witnesses. As before stated, the witnesses Dunscomb & Seaver resided in the state of Missouri. If the witnesses had been present at the trial, and upon the witness stand, the questions would have been propounded to them in the presence of the jury, and the jury would have heard the questions asked, and would have heard the answers given, and would have known precisely the conduct of the witnesses while giving their testimony, and would, in my opinion, though the authorities are conflicting, have had a right to take all these matters into consideration in deliberating upon their verdict. Then, why should these matters be excluded from the jury, when produced in the form of a deposition? But, admitting for the purposes of the argument, that the plaintiffs would have had the right to have these questions and answers stricken from the depositions and excluded from the jury, if they had made the motion therefor before the trial was commenced, still, as they did not make any such motion, or any objection of that kind, before the trial, I think their motion and objection were made too late to be available. (Weeks on Depositions, §§404, 504; Strum v. Atlantic Mut. Ins. Co., 63 N. Y. 77.)
VI. The sixth alleged error is, that the court below erred in giving instructions numbers 6 and 7. The sixth instruction was unquestionably erroneous; but it was erroneous simply from the fact that the court below, instead of saying the creditors of Samuel Barnes, inadvertently said “the creditors of Dodd, Brown & Co.” The mistake was so palpable and manifest that we hardly think it could have misled the jury, though possibly it might.
We think the seventh instruction was also erroneous, because it was not applicable to the facts of this case. It seemed to ignore the fact that Frank E. Barnes was a member of the firm of S. Barnes & Co. as well as of the firm of Smith, & Barnes; and that therefore the firm of Smith & Barnes could not enjoy the fruits of the fraudulent transactions of S. Barnes & Co. But probably this error did not mislead the jury. The court, in another instruction, gave the jury the law upon this subject correctly.
VII. We have now considered all the points made by counsel for plaintiffs in error, and while we find that the court below committed several errors, we can hardly say that any one of them, if taken separately and singly, would be sufficient to, require a reversal of the judgment rendered by the court below. If the final result reached by the court below had been such as we think it should have been, it is possible and perhaps even probable that we could not say that any of the errors committed by the court below were material. But the result was wrong. The transactions had between Samuel Barnes, and Frank E. Barnes, and Dunscomb & Seaver were, in our opinion, unquestionably fraudulent; and therefore the verdict of the jury and the judgment of the court below should have been in favor of the defendants and against the plaintiffs; and therefore it would seem that some one or more of the erroneous rulings of the court below must have led to this erroneous verdict and judgment; and there
The judgment' of the court below will therefore be reversed, and the cause remanded for a new trial. ‘