« ΠροηγούμενηΣυνέχεια »
tempted to alight while the car was in mo- speed was it moving when she attempted to tion, and thus by her own fault received alight. While these questions were of themwhatever injury she suffered. There was selves proper, and should have been given, competent evidence to support both theories. the answer to question 5 was so nearly an The jury returned a general verdict in favor essential answer to all three that no prejudiof the plaintiff.
cial error appears to have resulted from the  The first assignment of error, the re-rejection. fusal to direct a verdict for the defendant, is, Counsel severely criticize the answer to in face of the conflicting evidence, without question 2 that the plaintiff did not know merit.
that the usual and customary place of stopCertain complaints touching the giving and ping was opposite the sidewalk on the west refusing of instructions are made, but a care- side of Eleventh street, and assert that it is ful examination of the entire matter leads directly contradictory to the testimony of the to the conclusion that the jury were properly plaintiff herself that she knew the usual charged.
stopping place was “at a point where the  There was an allegation that the con- rear steps of the car would be practically ductor negligently failed to assist the plain opposite the sidewalk." It seems to have tiff to alight, but not only was this feature been generally understood that the rule was of the case ignored in the instructions and to stop on the farther side of the street, and but little attention paid to it in the evidence, this the plaintiff, in effect, admitted, but had but the counsel for appellant in their brief the question been answered the other way, say that there is but one question involved, | and had the plaintiff, in fact, known that the the negligence in starting the car and the al- usual and customary place for stopping was leged contributory negligence of the plaintiff opposite the sidewalk on the west side of in attempting to alight while the car was in Eleventh street, such knowledge would not motion. Hence the refusal of certain in- have precluded her from attempting to alight structions as to the duty of a conductor to when she thought the car, in obedience to her help passengers to alight becomes immaterial.
signal or request, had come to a stop, al[3, 4] The defendant submitted ten ques- though a few feet this side of the usual stoptions, seven of which were answered and ping place. three of which were stricken out by the  It is contended that the finding that court. The seven had reference to the usual the car slowed up and stopped is against the stopping place of the cars, to the slowing up overwhelming weight of the evidence, but of one on which the plaintiff was riding, to there was some competent evidence to sup the nonaccidental nature of plaintili's fall | port such finding, there was no motion to set and the place where it occurred. In answer it aside, and it was approved by the trial to question 10, the jury found that the plain
court, and we cannot disturb it. tiff fell from the car about 23 feet east of the
Some complaint is made that excessive usual and customary stopping place at Elev- |
damages were allowed, but an examination enth street. Question 6, refused, was sub
i of the record discloses nothing requiring restantially covered by this.
versal or modification on that ground. The Question 5 and the answer were:
plaintiff was injured. Somebody was care"Do you find from the testimony that the car
less. The jury and the trial court have, from was slowing up for the Eleventh street stop when the plaintiff stepped or fell off the car ? | competent evidence, concluded that it was Answer: It slowed up and stopped.”
the defendant. No error materially prejuQuestions 3 and 4 were whether, when the dicial appears and this conclusion must stand. plaintiff fell from the car, it was moving The judgment is affirmed. All the Justices about 2 miles an hour, and, if not, at what concurring.
f a witness to pay itin
(97 Kan. 82)
the condition of Mrs. Hawk's health as well BRICE V. HAWK. (No. 19836.) * as her mind." (Supreme Court of Kansas. Jan. 8, 1916.)
Mrs. Hawk's attorney testified:
“There was nothing said as to the enforce(Syllabus by the Court.)
ment or the collection of the note for the same 1. BILLS AND NOTES 523–HOLDEB IN DUE
reason. We discussed both the note and the
contract, the discussion was with reference to COURSE-SUFFICIENCY OF EVIDENCE.
a settlement by the delivery of the note and Where a firm of real estate dealers received
the cancellation of this contract. Of course, I a promissory note as their commission for sery
couldn't say at that time that there was any ices in negotiating a land trade, and the maker
defense to the note outside of what would be became dissatisfied with the trade, and the real
the contract, because that is the first time I estate dealers and their attorney held a con
knew there was a note. I first heard of the ference with the attorney for the maker to con
note from Mr. Brice. I heard his testimony ir sider a cancellation of the contract and the sur
which he said that I stated at that time that render of the note, and the maker's attorney | I did not know anything about the note. and apprised them of the defenses to the enforce
that I said if she had given a note she would ment of the contract, among which were want of
I probably have to pay it. My theory was that consideration and fraud on the part of the in
| the payment of this note was by way of compayees, the question whether the attorney for
promise to secure the cancellation of that conthe payees, who afterwards acquired the note
tract." before maturity, was a holder in due course and without notice of its infirmities, was properly The appellant's testimony, in part, reads: submitted to the jury, and a general verdict and “Well, all that was said about the note, Mr. judgment against him will be sustained. Hoskinson didn't know there was a note given
(Ed. Note.-For other cases, see Bills and at that time, and he said the contract could be Notes, Cent. Dig. 88 1832-1839; Dec, Dig. em set aside, but he didn't know about the note, and 525.)
I said 'What are you going to do about this 2. EVIDENCE OM 471-RESPONSES TO LEADING
note given by Mrs. Hawk?' and he said, 'Of QUESTIONS-CONCLUSIONS OF LAW.
course, if there is a note, they will have to The affirmative responses of a witness to two conclusions of law couched in the form of No settlement was effected. A lawsuit leading questions examined, and held to have
followed between Benewell Cline and Emma been properly stricken from the record.
Hawk over the land contract, in which the ap(Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 2149-2185; Dec. Dig. 471.)
| pellant, Harry Brice, was attorney for Cline.
About two weeks after the conference in Appeal from District Court, Finney County. Garden City, between Mrs. Hawk's attorney
Action by Harry Brice against Emma and Gonder, McDonald, and Brice, the note. Hawk, From judgment for defendant, plain- was indorsed by the payees to Brice, and he tiff appeals. Affirmed.
brought this action on it. The record shows
that Mrs. Hawk prevailed in the action C. M. Williams, of Hutchinson, Harry
brought by Cline, and Brice, as his attorney ; Brice, of Cimarron, H. 0. Trinkle, of Garden City, and L. A, Madison, of Dodge City, for
but whether that suit was commenced or
whether Brice had been employed by Cline appellant. W. E. Covert, Edgar Foster, and
to prepare and file that suit before Brice acHoskinson & Hoskinson, all of Garden City,
quired the note from Gonder and McDonald for appellee.
is not shown.
Among the several defenses to the note DAWSON, J. Some time in 1912, Gon
were want of consideration, fraud on the der and McDonald, a real estate firm in Cim
part of the payees, and plaintiff's notice of arron, arranged a real estate deal between
the note's infirmities before he acquired it. Benewell Cline and Emma Hawk and her
The appellant testified that the note was husband. For this service, Emma Hawk, the
transferred to him in consideraticn of servappellee, gave Gonder and McDonald her
ices as a lawyer and also for an equity in promissory note for $1,280, dated August 7,
a quarter section of land. Then he testi1912, and due October 1, 1912. Not long dede
fied: afterwards, Emma Hawk became dissatisfied
"Q. And you bought this note for a valuable with the deal and employed a Garden City consideration, before maturity? A. Yes, sir. lawyer to protect her interests. About Sep | Q. And without knowledge of any defense tember 7, 1912, the appellant, Harry Brice,
against it? A. Yes, sir. Whereupon the de
fendant moved the court to strike from the reca lawyer and abstractor of Cimarron, called
ord that part of the testimony of the witness in on Mrs. Hawk's lawyer in Garden City, on | regard to buying this note for a valuable conbehalf of Gonder and McDonald, seeking to sideration, same being a question of law. Moeffect a settlement of the trouble about the
tion sustained, and that part of testimony strick
en out and withdrawn from the consideration of land deal between Hawk and Cline. Gonder the jury, by the court. To which ruling of the and McDonald were also present at the con- court, the plaintiff, at the time, duly excepted." ference. There was some discussion of a The jury returned a general verdict for settlement whereby the note and land con- the defendant, and this appeal seeks a review tract should be canceled. Mrs. Hawk's at- of the ruling of the district court recited torney contended that they could not enforce above. the contract; that Mrs. Hawk “had been [1, 2] The time when the note was acquirtaken advantage of, and on account of hered by Brice, the consideration, the facts perage and inexperience in such matters and tinent to show the good faith of Brice, his
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-18
*Rehearing denied February 18, 1916.
knowledge of the Cline-Hawk land trade for, bequest to the plaintiff. The application was which the note was given to his clients, his denied, and the plaintiff appealed to the disemployment and efforts to settle the contro- trict court. After a trial the district court versy about the land trade-every pertinent sustained the action of the probate court, fact necessary to determine the question of and the plaintiff appeals. notice to plaintiff was in evidence. The two The district court made very full findings questions which brought the affirmative re- of fact. The last finding reads as follows: sponses from the witness added no additional "From the evidence I find as a fact that by facts to what had been already developed. the eleventh paragraph of said will Mr. T. J. They were objectionable as merely calling for
Collins did not intend to give to the William
werely camus cor Small Memorial Home for Aged Women at the affirmative assent of the witness to mere Leavenworth, Kan., $8,000, or any other sum." conclusions couched in the form of leading
It is argued that this finding is merely a questions by plaintiff's counsel.
conclusion of fact derived from specific facts No question is raised touching the suffi.
previously found. The finding is a finding of ciency of defendant's proof to show want of
the ultimate fact in issue, the intention of consideration on the part of Gonder and Mc
the testator. Conceding that the validity of Donald, so that phase of the case need not
the finding might be affected by other findbe reviewed.
ings, there is none which is inconsistent It is urged that appellant relied upon the
with it. The plaintiff argues that the will statement of Mrs. Hawk's counsel: "If she
must be interpreted to prevent intestacy if has given a note, she will have to pay it."
possible, and then argues from other proviMrs. Hawk's attorney heard of the note for
sions of the will and the facts and circumthe first time in that conversation, and his
stances stated in the findings that the plainanswer was based upon the theory, as he
tiff sufficiently identified itself as the benetestified, “that the payment of the note was
ficiary named in the will. No useful purby way of compromise to secure the cancel
pose would be subserved by debating the lation of the contract." The facts were sub
facts with the plaintifr. mitted to the jury under careful and appro
This court is satisfied with the conclusion priate instructions to which no exceptions
reached by the district court, and its judgwere taken, and the result cannot be dis
ment is affirmed. All the Justices concurring. turbed.
The judgment is affirmed. All the Justices concurring.
(97 Kan. 126)
VAN HORN v. WETTERHOLD. (97 Kan. 87)
(No. 19862.) WILLIAM SMALL MEMOR
HOME FOR AGED WOMEN v. COLLINS'
| (Supreme Court of Kansas. Jan. 8, 1916.) ESTATE. (No. 19841.)
(Syllabus by the Court.) (Supreme Court of Kansas. Jan. 8, 1916.) BROKERS 54, 65 – RIGHT TO COMMISSION
-PERFORMANCE-FRAUD. (Syllabus by the Court.)
One who as agent undertakes to procure EXECUTORS AND ADMINISTRATORS 314 - for a landowner a contract with another for PAYMENT OF BEQUEST-FINDINGS OF FACT_ the exchange of certain properties cannot recorINTENT OF TESTATOR.
er his commission when the person he produces Findings of fact examined, and held to sus
is not able, ready, and willing to perform, and tain the judgment rendered.
when it also appears that such contract was (Ed. Note.-For other cases, see Executors
fraudulently altered by such agent. and Administrators, Cent. Dig. 88 1274–1297;
(Ed. Note.-For other cases, see Brokers, Cent, Dec. Dig. 314.]'
'| Dig. 88 48-50, 75-81; Dec. Dig. Om54, 65.] Appeal from District Court, Anderson
Appeal from District Court, Sedgwick County.
County. Action by the William Small Memorial
Action by W. L. Van Horn against George Home for Aged Women against the estate of Wetterhold. From judgment for defendant, T. J. Collins. From judgment for defendant. plaintiff appeals. Affirmed. plaintiff appeals. Affirmed.
Fred K. Hammers, of Wichita, for appelChas. W. Garrison and Manford Schoon- lant. P. D. Gardiner, of Wichita, for appelover, both of Garnett, and W. W. Hooper, of lee. Leavenworth, for appellant. Noah L. Bowman, of Garnett, for appellee.
WEST, J. The plaintiff sued to recover a
commission for procuring a contract of exBURCH, J. The will of T. J. Collins, de
change between the defendant and G. A. ceased, contained the following bequest:
Rucker for certain real properties. He aver"Eleventh. I give, devise, and bequeath to the
red that under the contract Rucker was to Old Ladies' Home of Leavenworth, Kansas, the convey a certain tract of land free and clear sum of eight thousand ($8,000.00) dollars." of all incumbrances, except a mortgage of
Claiming to be the beneficiary intended, the $6,000, all water rights to be paid and all tasplaintiff made application to the probate courtes up to date. for an order for payment of the amount of the The defendant answered that G. A. Rucker
, was not able to carry out the terms of the to pay a fine of $100. From the judgments,
contract, and charged fraud in its procure appeals were taken. ment and alteration. The testimony showed No brief had been filed in either case, and that the land in question had been sold at no appearance made on behalf of the plainforeclosure, and the only conveyances offered | tiff in error, when the cases were called for to the defendant consisted of a general war- | final submission. The Attorney General has ranty deed from the fee owner to Glen A. | filed motions to dismiss the appeals, on the Rucker conveying the land subject to a mort ground that the same have been abandoned. gage of $7,063, with interest thereon from The motions to dismiss the appeals are apOctober 2, 1911, back taxes $207.63, and wa- parently well taken. The appeals herein are ter tax $298.07, and a general warranty deed therefore dismissed, and the causes remanded from Glen A. Rucker to the defendant con- | to the county court of Coal county, with diveying the land subject to an incumbrance rections to cause its judgments therein to of $6,000, which, by the terms of the deed, be carried into execution. the grantee was to assume and agree to pay. | Mandates forthwith. It appeared that the incumbrances above the $6,000 could not be taken care of until Rucker procured the money for that purpose, and that he desired to use the property to be con
LINDSEY et al. v. GOODMAN. (No. 6091.) veyed by the defendant as a basis for a loan (Supreme Court of Oklahoma. Feb. 8, 1916.) to raise such money. The jury found for the defendant general
Commissioners' Opinion, Division No. 4. ly, and also in answer to special questions
Error from Superior Court, Tulsa County ; that the defendant did not agree to pay the
M. A. Breckenridge, Judge. plaintiff for procuring the contract, that the
Action between L. W. Lindsey and another contract had by the plaintiff been materially and Elizabeth Goodman, administrator of altered since its execution by changing a
the estate of Charles D. Goodman, deceased. name and inserting approval, and that G. A.
| From the judgment, the parties first menRucker was not ready, willing, and able to
tioned bring error. Motion to dismiss overcarry out his part of the agreement for the
| ruled, and time allowed to prepare and tile exchange of properties. Findings were made
briefs. in relation to other matters which need not Chas. L. Fildes, of Tulsa, for plaintiffs in be considered.
error. John Y. Murry, Jr., of Tulsa, for deVarious questions are argued, but the find- fendant in error. ings referred to, sufficiently supported by the evidence, preclude recovery by the plaintiff.
WATTS, C. It is hereby recommended The judgment is affirmed. All the Justices that the motion of defendant in error to disconcurring.
miss the appeal be overruled, and defendant
and file briefs in this court.
PER CURIAM. Adopted in whole. (Criminal Court of Appeals of Oklahoma.
March 11, 1916.) . Appeals from County Court, Coal County ; EMPORIA FEEDING & ELEVATOR CO. v. P. E. Wilhelm, Judge.
MANBY. (No. 8724.) M. E. Keller was convicted of violations of (sunromo Count of Colore
(Supreme Court of Colorado. Feb. 7, 1916.) the prohibition law in two cases, and appeals. Appeals dismissed.
Department 3. Error to District Court,
City and County of Denver; Charles C. ButTrice & Moore, of Coalgate, for plaintiff in
ler, Judge. error. R. McMillan, Asst. Atty. Gen., for the
Action between the Emporia Feeding & State.
Elevator Company and J. B. Manby. Judg. PER CURIAM. M. E. Keller, plaintiff in
ment for Manby, and the Elevator Company error, was tried and convicted in the county
brings error. Application for supersedeas decourt of Coal county on two separate in
nied, and judgment affirmed. formations, each charging the unlawful sale George P. Steele, of Denver, for plaintiff of intoxicating liquor. In case No. A-2472, in error. H. A. Hicks and Charles Roach, he was sentenced to be confined in the coun- both of Denver, for defendant in error. · ty jail for 30 days and to pay a fine of $50. In case No. A-2473, he was sentenced to be
enced to be! PER CURIAM. Application for superseconfined in the county jail for 30 days and deas denied, and judgment affirmed.
(79 Or. 610 BOLEN V. STATE. (No. A-2475.)
HOY v. GORST. (Criminal Court of Appeals of Oklahoma | (Supreme Court of Oregon. March 7, 1916.) March 11, 1916.)
APPEAL AND ERROR 1170 REVERSAL-EB.
RORS. Appeal from County Court, Nowata Coun Under Const. art. 7, § 3, requiring affirmty; F. A. Calvert, Judge.
ance of judgments in law actions notwithstandHarve Bolen was convicted of a violation
ing errors if the judgment is such as should have
been rendered, a judgment in replevin will be afof the prohibitory law, and appeals. Af firmed in spite of unsubstantial errors. firmed.
(Ed. Note.-For other cases, see Appeal and H. 0. Bland, of Nowata, for plaintiff in
Error, Cent. Dig. & 4034; Dec. Dig. 1170.) error. R. McMillan, Asst. Atty. Gen., for the
Department 2. Appeal from Circuit Court, State.
Coos County; John S. Coke, Judge.
Action by Harry G. Hoy against V. G. PER CURIAM. On information filed in Gorst. Judgment for defendant, and plainthe county court of Nowata county, charging tiff appeals. Affirmed. that in said county on the 11th day of Nol Harry G. Hov. of Marshfield (Hoy & Milvember, 1914, the plaintiff in error, Harve
ler, of Marshfield, on the brief), for appelBolen, did unlawfully have in his possession
lant. John D. Goss, of Marshfield (John C. intoxicating liquors, to wit, one-half pint of
Kendall, of Marshfield, on the brief), for rewhisky and six one-half pints of alcohol,
spondent. with the intent to sell the same, he was tried, convicted, and sentenced to be confined in PER CURIAM. This is an action in rethe county jail for 60 days and to pay a fine plevin to recover a Ford machine, called in of $100. From the judgment, he appeals. the complaint an automobile. The evidence
No brief has been filed and the case was shows that plaintiff paid $35 for it, and that submitted on the merits. From a careful it was probably worth $90. There was a examination of this case, both as to the law.verdict for defendant, and plaintiff appeals. and the evidence, we have failed to discover There are some unsubstantial errors, but anything whereof the plaintiff in error has from the whole testimony we are satisfied just right to complain.
that the verdict and judgment are such as The judgment is therefore affirmed. Man- should have been rendered, and under the date forthwith.
provisions of section 3, art. 7, of the Consti. tution, are affirmed.
(60 Colo. 477) BOLEN v. STATE. (No. A-2476.)
BROTHERHOOD OF LOCOMOTIVE FIRE(Criminal Court of Appeals of Oklahoma.
MEN AND ENGINEMEN v. McHENRY. March 11, 1916.)
(No. 8442.) Appeal from County Court, Nowata Coun
(Supreme Court of Colorado. Jan. 3, 1916.) ty; F. A. Calvert, Judge.
1. INSURANCE 825 – FRATERNAL BENEFIT Harve Bolen was convicted of a violation
INSURANCE – EVIDENCE - QUESTION FOB
JURY. of the prohibitory law, and appeals. Af
In an action to recover on a policy of fra. firmed.
ternal benefit insurance, on the issue whether H. O. Bland, of Nowata, for plaintiff in er
the insured had been expelled from the lodge,
it was a question for the jury whether entry in ror. R. McMillan, Asst. Atty. Gen., for the the minutes indicating such expulsion had been State.
made subsequent to the meeting at which it
purported to have been made. PER CURIAM. On information filed in [Ed. Note.-For other cases, see Insurance, the county court of Nowata county, charging Cent. Dig. $ 2009; Dec. Dig. Om 825.] that in said county on the 7th day of Decem
2. APPEAL AND ERROR Om 1002-SCOPE OF REber, 1914, the plaintiff in error, Harve Bolen, VIEW – CONCLUSIVENESS OF FINDING BEdid unlawfully have in his possession intox-1 LOW. icating liquors, to wit, six one-half pints of Where the proper issues are submitted to whisky, with the intent to sell the same, he
the jury under instructions to which no con
plaint is made, the evidence upon those issues was tried, convicted, and sentenced to be being conflicting, the court on appeal cannot confined in the county jail for 30 days and disturb the finding below. to pay a fine of $50. From the judgment, he [Ed. Note.-For other cases, see Appeal and appeals.
Error, Cent. Dig. 88 3935-3937 ; Dec. Dig. No brief has been filed, and the case was
1002.) submitted on the merits. From a careful ex- Error to District Court, Las Animas Counamination of this case, both as to the law ty: A. W. McHendrie, Judge. and the evidence, we have failed to discover Action by Florence McHenry against the anything whereof the plaintiff in error has Brotherhood of Locomotive Firemen and En. just right to complain.
ginemen. To review a judgment for plain. The judgment is therefore affirmed.
I tiff, defendant brings error. Affirmed.