to the district court to object to it. Robinson v. Kious, 4 Ohio St. 593; Stewart v. Waite, 19 Kan. 219. The plaintiff in error also complains that the district court erred in admitting testimony on the part of the plaintiff, defendant in error, to show the measurement of the wagon-box, for the purpose of determining the quantity of corn it would hold in the ear. In this we see no error. The question was as to the quantity of corn received from the plaintiff by the defendant, and any evidence tending to show the amount contained in a wagon-load, was material. It is true the agreement was that one load was to be weighed, and the other loads all to be counted the same as the one weighed; but the weight of this load was challenged, and, to ascertain the contents of this load, evidence tending to show the amount the wagon would hold in bushels was competent. For this reason we find no error in the judgment of the district court. It is recommended that the judgment of the court below be affirmed. BY THE COURT. It is so ordered; all the justices concurring. (36 Kan. 402) ISENBERG v. FANSLER. 1. CHATTEL MORTGAGE-RECORDING-ATTACHMENT. I. was in possession of a stock of goods by virtue of a levy made under an order of attachment against G. F. claimed the right of possession under a chattel mortgage from G. In an action brought by F. to obtain possession of the goods, it was immaterial whether such mortgage had been recorded, if F. had taken possession of the goods under it when the levy of defendant was made subject to the mortgage. 2. SAME-VALIDITY-POSSESSION. F. took possession of a stock of goods under a chattel mortgage given by G., for whom he had been a clerk, and remained in possession of the same only four days, during which time the sales were light. There was no change in the form or manner of keeping G.'s books. Out of the proceeds of such sales he paid a small amount to the wife of G. once, and also paid for some staple goods to keep the stock salable, but did not apply any part of the sales to the payment of his mortgage debt. Held, it was not error for the court to instruct the jury that such possession was not of itself sufficient to defeat F.'s action for the possession of the goods, if F. could accurately account for the true amount of such sales, and further directing them to apply the amount of such sales as part payment of F.'s mortgage debt. (Syllabus by the Court.) Error from Smith county. At the April term of the district court Fansler recovered a judgment against Isenberg, who brings the case here. The facts appear in the opinion. C. W. Smith and E. F. Robinson, for plaintiff in error. ville, for defendant in error. Barnes & Re HOLT, C. Action in replevin. Defendant in error, plaintiff below, brought his action against plaintiff in error, defendant below, to recover possession of a stock of goods and merchandise in the town of Webster, Rooks county, setting forth a special ownership therein by virtue of a chattel mortgage given him by J. K. Guillihur. Defendant made a general denial, and introduced evidence showing that he was the sheriff of Rooks county, and as such officer levied upon the goods as the property of said Guillihur, in actions brought against him by his (Guillihur's) creditors. By consent of all parties, on account of the disqualifications of the judge of the Seventeenth district, the case was transferred to the Smith district court for trial. A trial was had by a jury, who returned a general verdict for defendant, and also made several special findings of fact. Motion for judgment for defendant on findings and for a new trial were overruled. The defendant brings the case here for re view. The record brought here is incomplete. No copy of the mortgage under which plaintiff claimed is before us, and for that reason many of the questions raised by the plaintiff in error cannot be considered. The evidence shows that one Guillihur engaged in business in April, 1884, and continued in such business until in November of the same year. He borrowed of Fansler $625, giving a note therefor, and a mortgage upon his goods to secure its payment. Fansler was a cousin of Guillihur's wife, and was employed as a clerk in his store. The mortgage was given November 17th, and was never recorded. Plaintiff and Guillihur agreed that plaintiff should have the right to take possession of the goods when Guillihur went to Iowa. Upon the twenty-fourth of November Guillihur went to Iowa, leaving Fansler in charge of the store as a clerk. There is some conflict of evidence when Fansler took possession of the goods under his mortgage, if he did at all. The jury found, in answer to special questions, however, that he took possession as mortgagee about the time Guillihur left for Iowa. The question of his taking possession is immaterial, as it is in evidence by defendant himself that he made the first levy subject to the mortgage of Fansler, and he levied afterwards under the other attachments upon the goods in his (defendant's) possession. After Guillihur went to Iowa, Fansler sold goods in the usual way, turning over once to Mrs. Guillihur six or seven dollars; paying a small amount for goods purchased by Guillihur necessary to help sell other goods in the store; and kept the books without change in any way, as they were kept when Guillihur was in charge of the store. The court gave the following instruction to the jury: "That if they should find from the evidence that, at the time said mortgage was made and delivered, the agreement was that Fansler should take immediate possession of the mortgaged stock as mortgagee, and sell the same, and apply the proceeds thereof to the satisfaction of his debt, and that he did take such possession under said agreement, and did sell goods, and applied the proceeds of such sales, not upon his own debt, but to the credit of Guillihur, and on Guillihur's account alone, then you should find for the defendant, unless the plaintiff has so accounted for such sales that you can ascertain the true amount thereof, and deduct the same as a payment on his note and mortgage." The defendant excepts to the last part of the instruction, viz.: "Unless the plaintiff has so accounted for such sales that you can ascertain the true amount thereof, and deduct the same as a payment on his note and mortgage,”—being a modification of an instruction asked by him. case. We think there was no error in the modification complained of. The ordinary rule applicable in like case was plainly given in the first part of the instruction, and the modification was properly given under the facts in this Plaintiff had been in possession of the goods only four days. The sales had been light. He had paid only a small amount to the wife of Guillihur. Had paid out of the proceeds for goods to keep the stock in good shape to sell, and had kept the books in the ordinary way. He had accounted for the sales, as shown by the verdict of the jury and the deduction made by the court. The jury found the value of the special ownership of plaintiff was $609.42. The amount of Fansler's note, no part of which had been paid him, would have been about $646, and, on motion for a new trial, the court, as a condition for overruling defendant's motion, deducted $19.95 from the verdict of the jury, with the consent of the plaintiff, making in all the sum of over $57 less than the face of plaintiff's note. We think the court had the power to reduce the amount of the verdict, if plaintiff consented. Such reduction was in defendant's favor, and hence he had no cause to complain. This was simply an action for the possession of the goods in question. The defendant had first levied upon them subject to the mortgage of plaintiff, and taken them into his possession. Afterwards, when the goods had passed from plaintiff's possession to that of defendant, he then levied upon the goods un der other orders of attachment. We think that, under those circumstances, the plaintiff was entitled to the possession of the goods until his note was paid, or he had disposed of enough goods, after he had taken possession of them, to have paid the note in full. The creditor of Guillihur, who first brought suit, levied upon the goods in controversy subject to Fansler's mortgage. The defendant, as sheriff of Rook's county, took possession of the same, and all other attachments sued out by Guillihur's creditors were levied upon goods in defendant's possession. Under such state of facts, the main question to be determined was whether Guillihur was indebted to Fansler. The evidence shows that Fansler loaned Guillihur $500 in June, 1884, and afterwards, in November, gave the note for $625, being the amount of $500 and services rendered Guillihur by Fansler. The turning over by Fansler to Mrs. Guillihur of a part of the money derived from the sale of the goods, and the keeping of the books without change after Fansler took possession, might be proof tending to show collusion between Fansler and Guillihur, but, under the other evidence of this case, and the specific findings of fact, we cannot say that it established a fraudulent intent on the part of Fansler to defraud Guillihur's creditors. The other errors complained of are disposed of by our view of this case. We think the court did not commit any substantial errors in the trial of this case. It is recommended that the judgment of the court below be affirmed. BY THE COURT. It is so ordered; all the justices concurring. (36 Kan. 407) HART PIONEER NURSERY CO., a Corporation, etc., v. SCRUGGS.* (Supreme Court of Kansas. April 8, 1887. 1. ERROR-FROM JUSTICE OF PEACE-MOTION FOR NEW TRIAL. Before an action in a justice's court, which is tried with a jury, can be reviewed on petition in error in the district court, a motion for a new trial must be made in the justice's court. A ruling of the justice of the peace on the trial, in admitting testimony or excluding the same, against and over the objections of a party thereto, cannot be reviewed by the district court on petition in error. (Syllabus by the Court.) Error from McPherson county. This action was originally brought in justice's court, and taken on petition in error to the district court, and at the April term, 1885, the judgment of the justice was affirmed. Defendant now brings the record to this court for review. The facts are stated in the opinion. Frank C. White, for plaintiff in error. Lucine Earl, for defendant in error. CLOGSTON, C. Scruggs brought an action against the Hart Pioneer Nursery Company to recover for services claimed to have been rendered by him as salesman for the defendant. At the trial before the justice he obtained a judgment for the amount claimed, being $79.45, and costs. The cause was taken to the district court on error. Judgment of the justice affirmed by the district court, and now brought to this court for review. Plaintiff complains of the ruling of the justice on the trial in admitting in evidence certain parts of a deposition, and a letter written by the plaintiff in error, over the objections of the plaintiff, for the reason that the same was incompetent; and, upon examination of the evidence admitted and objected to in the deposition, we are of the opinion that the same was incompetent and improperly admitted. But, if this be correct, can it avail the plaintiff? He made no motion for a new trial, and, not having done so, defendant in error insists that the plaintiff had no remedy by petition in error. This we think correct, and has so been *For corrected opinion, see 14 Pac. 145, 36 Kan. 407. held by this court in Rice v. Harvey, 19 Kan. 144, and cases therein cited. Again, this court has repeatedly held that the erroneous admission or exclusion of evidence cannot be reviewed by petition in error. See Thompson v. Brooks, 29 Kan. 504, and Theilen v. Hann, 27 Kan. 778. Therefore, within these authorities, it is immaterial, even if the justice did err in the admission of evidence. The remedy is not by error, bat by appeal. It is recommended that the judgment of the court below be affirmed. (36 Kan. 401) CITY OF COTTONWOOD FALLS v. SMITH. (Supreme Court of Kansas. April 8, 1887.) MUNICIPAL CORPORATIONS-Ordinance-VALIDITY. A city of the third class, organized under chapter 60, Laws Kan. 1871, has power to pass an ordinance prohibiting the discharge of fire-arms within its limits. (Syllabus by the Court.) Error from Chase county. Sanders & Smith and S. P. Young, for appellant. Thos. O'Kelley, for appellee. The SIMPSON, C. This is an appeal from the Chase county district court. prosecution was commenced before the police judge of Cottonwood Falls, a city of the third class, for a violation of the ordinance prohibiting the discharge of fire-arms within the city limits. The defendant, being adjudged guilty, appealed to the district court, where there was a trial by the court, a jury being waived, a finding of guilty, and a sentence to pay a fine of one dollar and costs, and to stand committed until paid. The record recites that a motion for a new trial was overruled and excepted to. The motion is not set out in the record, and no date of filing is given, so as to determine whether before judgment or after, and the causes assigned therefor are unknown. Attached to the record is what purports to be a transcript of the journal of the city council, respecting the ordinance claimed to be violated, and under which the prosecution was had; but it nowhere appears that it was ever offered in evidence, or made a part of the record, nor is there anything by which the court can determine what questions arose in the disirict court, or how they were decided. The power In this state of the record only two questions will be noticed. of the city council of a city of the third class to pass the ordinance in question is found in section 51 of chapter 60 of the Laws of 1871, which provide: "The city council may also restrain and prohibit riots, and prevent the discharge of fire-arms in the streets, lots, alleys, grounds, or about the vicinity of any buildings." Here is a delegation of power by the legislature to the city council of cities of the third class to pass an ordinance prohibiting a discharge of fire-arms within the city limits, and, in the absence of the ordinance itself, the presumption is that the city council acted within the delegated power. The complaint charges a public offense. These are the allegations constituting the charge: "On or about the twenty-fifth day of April, A. D. 1883, J. A. Smith, within the corporate limits of the city of Cottonwood Fails, Chase county, Kansas, the same being a city of the third class, then and there being, did then and there shoot and discharge a pistol, commonly called a revolver, the said shooting not being done in any public display, or in commemoration of any extraordinary event, and that the said J. A. Smith, was not then and there an officer of said city or state, or United States, contrary to and in violation of section 1, ordinance No. 8, of said city." This disposes of the only two questions that will be considered. It is recommended that the judgment of the court below be affirmed. BY THE COURT. It is so ordered; all the justices concurring. (36 Kan. 391) CULVER and others, Partners, etc., v. WARREN. (Supreme Court of Kansas. April 8, 1887.) PRINCIPAL AND AGENT-EVIDENCE-RATIFICATION-TELEGRAPH COMPANIES. Part payment of an amount claimed to be due on a grain deal, the purchase and sale having been ordered by telegraph, is an acknowledgment of some liability, and a ratification of agency of a telegraph company in the transmission of its messages. (Syllabus by the Court.) Error from Lyon county. Cunningham & McCarty, for plaintiffs in error. Kellogg & Sedgwick, for defendant in error. SIMPSON, C. Action for a balance of $350.75, claimed to be due on a corn deal, the plaintiffs in error being commission merchants in Chicago, and defendant in error a resident of Lyon county. On March 15, 1882, the plaintiffs in error sold for the defendant in error, as per telegraph instructions, 10,000 bushels No. 2 corn, to be delivered during the month of July of that year for 674 cents per bushel. On the twenty-first day of March the defendant in error paid the plaintiffs in error, by draft, the sum of $200. On the fifth day of April following, Culver & Co. purchased for Warren 10,000 bushels of corn, to be delivered in the month of July following to the party to whom they had sold on the fifteenth day of March. For this corn they paid 73 cents per bushel, and subsequently Culver & Co. paid the difference between the price of the corn sold on the fifteenth of March and that bought on the fifth day of April, amounting to the sum of $525. This amount, less the net proceeds of the draft, they sought to recover. There was a jury trial. The plaintiffs in error read the deposition of George N. Culver, one of the Chicago firm, to the jury, detailing the transaction, parts of which were admitted by the court under the objections by the defendant in error. They also produced the agent of the Western Union Telegraph Company, at Emporia, who testified "that all the originals of messages received by said company at Emporia, for transmission over its lines from that point, during the year 1882, had been destroyed, and are not now in existence." This was all the evidence on the part of the plaintiffs in error. The defendant in error offered no proof. Under the direction of the court, the jury returned a verdict for the full amount for the plaintiffs in error. Motion for a new trial was filed, and sustained for error occurring at the trial, principally because the copies of the telegrams sent by Warren to Culver & Co., at Chicago, ordering the sale and purchase of the corn, were admitted without proof that Warren had authorized the telegraph company to transmit them. The main cause of error assigned and discussed by counsel for the plaintiffs in error in this court is the action of the court setting aside the verdict, and granting a new trial, for the reason above stated. Numerous cases are cited by counsel on both sides as to this ruling. "It is undoubtedly the law that, when a message is left at a telegraph office for transmission, the company becomes the agent of the person authorizing it sent; and, before such a message can be admitted in evidence, there must be some preliminary proof of the agency of the company transmitting it; and, if this was the only question in the case, it would have to be solved in accordance with the above declarations of the law. The evidence discloses the fact, and that, too, by proper proof, uncontradicted, that the defendant in error had made part payment of this demand; and hence there is no necessity for the enforcement of the strict rule of evidence concerning the messages, for part payment of the demand is not only an acknowledgment of liability, but is also a ratification of the agency of the telegraph company in the transmission of the messages. It is recommended that the judgment of the court below be reversed. BY THE COURT. It is so ordered; all the justices concurring. v.13p.no.9-37 |