The opinion of the court was delivered by
In August, 1907, the parties entered into the following agreement:
“Holton, Kan.
“I hereby confirm sale to S. J. Thompson of 10,000 bushels (ten thousand bushels), No. 3 or better corn with the privilege of delivering 14,000 bushels (fourteen thousand bushels), optional with me.
“The price to be paid 36% cents per bushel (thirty-six and one-half cents per bushel).
“The corn to be delivered on or before December 31, 1907, at S. J. Thompson’s elevator at Mayetta.
C. J. Seek,
S. J. Thompson.”
On March 3, 1908, Thompson sued Seek for damages for failure to deliver the corn. Seek answered that he began delivering the corn but that Thompson refused to pay therefor according to contract.
A verdict was returned for Seek. On September 19, 1908, a motion for a new trial was filed setting up various grounds, but not newly discovered evidence; September 24, 1908, a motion for a new trial •on the ground of newly discovered evidence was filed, and on January 6, 1909, the “motion for new trial” came on to be heard. “The plaintiff offers evidence in support of said motion and rests. Defendant also rests.” The motion was allowed and this is alleged as error.
Counsel for Thompson insists that the record does not show that the motion was allowed on the sole ground of newly discovered evidence, and he sets out in his counter abstract a journal entry worded as above quoted, and showing that he took ninety days to make and serve a case. Counsel for Seek refer us to a journal entry or statement said to be found in the case-made, showing in express terms that the motion was sustained “solely upon the ground of newly discovered evidence-set forth in said affidavits of Robert L. Miller and Si J. Thompson.” As the only excuse for offering evidence would be for the purpose of supporting the later motion, and as the language of the supposed journal entry found in Thompson’s counter abstract indicates a ruling on the one motion only, we shall assume that the
The findings and verdict were supported by the evidence, which, in brief, showed that Seek offered to deliver the two loads of corn which he appears to have purchased of his father, and on learning from Thompson that payment would be made by check only advised him that it took cash to get the corn and that he (Thompson) might consider the deal off. This was during the financial stringency when all the banks were paying out but little cash, and this doubtless accounts for Thompson’s desire to pay by check.
The evidence in support of the motion for a new trial was to the effect that one Robert L. Miller would testify that on or about September 12, 1907, Seek sold him about two hundred acres of corn in the field, and that afterward Miller learned of the contract with Thompson and asked Seek about it, and Seek replied that “he would fix that all right with him,” and that the sale to Miller was made long prior to the time the corn was ready to be gathered, and while standing in the field. It would seem from this that Seek sold certain corn to Miller in September, after selling the same or other ■corn to Thompson in August. The record does not show whether it was the same corn, but it appears that Seek “bought the two loads in question of his father. He testified that he told Thompson he “had to have the money to get more corn. ... I bought corn and ■corn was ready to be taken in and I expected the money for it.” His father testified, “Chauncey had bought it from me and paid [for] part of it.” The contract does not specify any particular corn, and it is not clear what ■effect the sale to another of a certain field of standing ■corn could have on Seek’s rights or liabilities.
It is argued that Miller’s evidence would be material as touching the disputed question whether or not Seek really delivered or intended to deliver the corn to Thompson. But it is manifest that Thompson was not
'“If it clearly appeared that the ruling rested upon, or rather raised, a pure, unmixed question of law, and that it was erroneously made, we would be warranted in reversing the order.” (Ireton v. Ireton, 62 Kan. 358, 360.)
(See, also, Lindh v. Crowley, 29 Kan. 756; A. T. & S. F. Rld. Co. v. Brown, 51 Kan. 6; Sovereign Camp v. Thiebaud, 65 Kan. 332; and Sutter v. Harvester Co., 81 Kan. 452.)
Finding, therefore, no sufficient ground for granting a new trial, the judgment is reversed.