No. 18,337 | Kan. | Jul 5, 1913
This is the second appeal which the plaintiff has taken from a judgment in favor of the interpleader* V. May Alleman. The case was tried originally before the court upon a motion to dissolve the plaintiff’s attachment and the interplea, and the evidence consisted almost wholly of affidavits. The judgment was reversed and the cause remanded for a full trial in the regular way upon formal pleadings. (Grocer Co. v. Alleman, 81 Kan. 543, 106 Pac. 460.) Such a trial has been had before a jury, with the same result as before.
There are fifteen assignments of error and ten of them go to the sufficiency of the evidence to support the verdict. These assignments of error are argued as they would be to a jury. The court is asked to regard witnesses as unworthy of credence, to disbelieve oral testimony, to hold that certain evidence overcomes other evidence, and in a word to retry the case and reach conclusions contrary to those drawn by the jury and approved by the trial judge. There is ample
With the facts found against the plaintiff there is no substantial question of law to be discussed. The - essential facts are that Mrs. Alleman loaned her husband $1500 on his promissory note. The money was hers. Even if he gave it to her he was not at the time indebted to anybody and consequently nobody can complain. With this money Alleman started a grocery store and the plaintiff extended him credit. Later a mercantile ágency secured a financial statement of the business from Mrs. Alleman in which she did not mention her husband’s debt to her, but the credit which the plaintiff makes the basis of its suit was not extended on the faith of this statement. (Special finding No. 19.) Consequently the question of estoppel goes out of the case. Alleman became embarrassed financially and preferred his wife by trading the store for a farm which was to be deeded to her. In concluding the trade a deed was made to him, which he refused to accept, and then the deed to her, as he had originally directed, was executed, delivered, and accepted. Consequently title to the farm never vested in Alleman. Mrs. Alleman was not cognizant at the time of her husband’s financial condition, and the trade was made to pay her and not to defraud Alleman’s other creditors. The value of the farm, above the mortgages upon it, did not exceed the amount of her cláim. The statement referred to in finding No. 22 was true because when it was made Alleman had paid his wife.
It is useless for the plaintiff to deride the testimony by which these facts were established as absurd, ridiculous, ánd beyond the pale of reason. The jury and the trial judge saw the witnesses and heard the evidence. The court stated plainly in its instructions to the jury the circumstances under which the plaintiff could re
The judgment of the district court is affirmed.