Woods v. Hamilton, 39 Kan. 69

Woods v. Hamilton

39 Kan. 69 | Kan. | 1888

Opinion by

Cuogston, C.:

The errors complained of are, first, that the bill of particulars failed to show or state that a *71demand was made on the defendant, for the money claimed before the commencement of the action; second, that the action was improperly brought in the name of the firm of Hamilton & Gormly; third, that the court permitted evidence to be given to the jury of the amount of the judgment, costs and attorney’s fees paid by plaintiffs in a suit by the Moline Plow Company against them; fourth, the cashier of the Wellington National Bank was permitted to testify to his examination of the bank’s books, and to give the result of that examination. We think none of these objections are well taken. It is true that the bill of particulars did not show that a demand had been made upon the defendant before bringing the action, but it did show a state of facts which, in our judgment, made a demand unnecessary; and if a demand was necessary, then the defect was cured by the evidence. The defendant admitted in his examination that a demand had been made upon him, and that he refused to pay the money a second time.

We think the action was properly brought in the name of the firm. The note was a firm note; the judgment was paid by the firm. It is true Mr. Gormly testified that the money now sought to be recovered was sent by him to Woods, but that he sent it for and on behalf of the firm. It was immaterial to the defendant whether this money was the individual money of the plaintiff Gormly, or partnership funds; it was sent to him on account of the firm, to be used in the firm’s business, and to pay an indebtedness of the firm; and now the firm seeks to recover that payment.

The court improperly permitted the plaintiffs to show the amount of costs and attorney’s fees paid by them in the case of the plow company against them. None of these items were proper elements of damage in connection with this action, and the court so instructed the jury, and all such evidence was thereby taken from them, and the jury returned a verdict for the amount that was admitted to have been received by defendant, with interest at 7 per cent. The verdict being correct, the error in the admission of testimony was immaterial.

*72H. E. Frantz was called as a witness on behalf of the plaintiffs, and testified that he was cashier of the Wellington National Bank; that at the time of the alleged payment of money by Woods to said bank on behalf of the plaintiffs he was a book-keeper in said' bank and made all the entries of money received in the books of the bank, and that at the time of said alleged transaction he was requested to make an examination of the books to ascertain whether such a sum had been paid in by Woods for the plaintiffs. He was then asked: “What was the result of your examination ? ” Ans.: “ I found that no such amount had been paid in at that time, nor at any time, by Judge Woods.” Witness was also asked whether he made an examination of the books of the bank at that time to see whether or not there was an amount of money paid in about that time which had not been credited to any source. He was then asked: “ What was the result of your examination ? ” Ans.: “ There was no money over in our cash at that time.” These questions were objected to by defendant, and the objection was overruled by the court. It was in the testimony of H. E. Frantz, who was cashier of the Wellington National Bank at the time of this alleged payment by the defendant to said bank, that the defendant made the request that the books of the bank be examined to ascertain whether or not he had paid that sum into the bank, and was informed of that examination. Perhaps this evidence was not very material; in any event its admission could work no great hardship to the defendant. It was not proving the contents of the books of the bank, but simply the evidence of the book-keeper who kept the books and who made the examination, that the books failed to show certain facts, and that no entry of that kind was to be found upon the books. We think no material error was committed in the admission of this testimony.

It is recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.