Kirkland v. Telling

Obtojt, J. We can find nothing in this cause to warrant a reversal of the judgment. It is a suit in equity, and all of the evidence fully reported, including that objected to by the respective parties; and the rulings of the court upon such objections become immaterial and unimportant. The only questions raised upon such objections are, whether the evidence so objected to ought to have been considered by the court, and 639 whether, if so considered improperly, its effect would he, or should be, to change the findings made. Although the exceptions taken on behalf of the appellants may not be considered and passed upon strictly as in a case at law, it may not be improper to say that they appear to us not to be sustained; and we are quite sure that the evidence taken subject to the objections of the respective parties probably did not, and properly would not and ought not to, affect or change the result. On the main issue, of the duress, threats and undue influence charged in the complaint, by which the assignment of the stock in the Clark County Bank is alleged to have been procured, the evidence is not only sharply and directly contradictory, but in our opinion greatly bears and preponderates against the allegations of the complaint. To settle and discharge the confessed defalcation of Frank Kirkland to the firm of Telling, Wood & Co., of which he was a member, and whose business he had alone managed, his father and mother would most naturally and reasonably be inclined of their owzi volition to make the assignment. He was the cashier of the new bank, and his father the vice-president, and by the arrangement and settlement, proposed he was to be allowed to vote by or as a proxy upon the stock so assigned, in order to retain his place in the bank. We think the evidence quite conclusively shows that Telling and Wood, as well as the attorneys O’Neill and Sheldon, acted with great consideration and kindness, and most honorably, in the whole transaction; and their testimony was corroborated by Judge Dewhurst, and the strong circumstances of its probability. The amendment of the complaint, proposed to suit the evidence on behalf of the appellants, was quite immaterial, and may be' treated as allowed without at all changing the result. By the Court.— The judgment of the circuit court is affirmed, with costs.