Meixell v. Kirkpatrick

The opinion of the court was delivered by HortoN, C. J.: This case, with the matters growing out of it, has already demanded much time and attention of this court. (25 Kas. 13; 25 id. 19; 28 id. 315; 29 id. 679.) At the May Term, 1881, of the trial court, Kirkpatrick, plaintiff below, had judgment for $7,500 and costs against Meixell, defendant below. That judgment was reversed solely on the ground that the instruction of the court, as to the measure of damages, was misleading, and that the value of the bonds in controversy as returned by the jury was excessive. (Meixell v. Kirkpatrick, 29 Kas. 679.) In the opinion rendered at that time, Mr. Justice Brewer, speaking for the court, said: “We do not doubt that a municipal bond so far resembles an ordinary chose in action that, where no evidence of value is offered, its face value is to be deemed the market value, and to this extent the instruction of the court is beyond criticism; but we think that it must be also conceded that such securities have become so abundant, and so much received as an — 290 — article of ordinary commerce, that they possess, strictly speaking, a market value; and when such market value is shown, that is to be deemed as the measure of damages for any conversion.” In view of the results attending the former trials of this case, and the several decisions of this court upon the questions at issue between the parties, we would have supposed upon a retrial of the case that the market value of the bonds would have been fully established by the defendant Meixell; or at least that he would have introduced all the evidence obtainable by him on the subject of their market value. We are more than surprised, however, when, from an examination of the record, we find that a large number of depositions had been taken by the defendant showing the market value of the bonds to be from fifteen to forty cents on the dollar flat, and that no effort was made to introduce these depositions as a part of the defense. Until the plaintiff below was permitted to give evidence in rebuttal, these depositions of market value were not offered. Objection was then made by the plaintiff below, because they were proposed to be read after the defendant had closed his defense, and also for other reasons. The court sustained the objection. The apology now given for the non-introduction of the' depositions, showing the market value of the bonds by Meixell in making out his defense, is that no evidence of value was given by or in behalf of Kirkpatrick, in making his case; therefore that Meixell felt justified in resting the value of the bonds upon the proof of three sales, viz.: 1st. All the bonds and coupons from Matthewson to Meixell, on June 30,1877, for $3,100; 2d. Half of the bonds and coupons from Meixell to Matthewson, on July 2,1877, for $1,550; 3d. One over-due $50 coupon from Hawk to Hudson, in June, 1877, or May, 1879, for $20. This apology is insufficient, when we consider that the important question which ought to have been contested in the trial court, was the value of the bonds; that in the absence of any evidence of value, their face value must be considered the market value; that the sales from Matthewson to Meixell, and — 291 — from Meixell to Matthewson, were not sales in the ordinary course of business; that Meixell purchased — if there was any sale to him from Forsyth — after notice that Forsyth had sold the bonds to plaintiff below; that Matthewson had the same notice; that the circumstances of the transaction look very much like collusion between Forsyth, Matthewson and Meixell to deprive Kirkpatrick of the bonds by a colorable sale; and that the single sale of one over-due coupon of $50 only would not establish a market value for the bonds. Again, the contract-price of the-bonds between Kirkpatrick and Forsyth furnishes no fair criterion of the market value, as at that time it was not generally known that the supreme court of the United States had declared them valid obligations, and therefore in the market the bonds were then under a cloud. After Meixell hád rested his case and Kirkpatrick had given evidence in rebuttal, the former was not entitled, as a matter of right, to introduce his evidence showing the market value of the bonds. It is contended, however, that the court abused its discretion in not permitting this evidence to be received after Kirkpatrick came back to the stand and testified that in his interview with Meixell on July 1, 1877, he informed him. that the bonds were worth one hundred cents on the dollar. Not so. This evidence was offered only as impeaching testimony; (Kelsey v. Layne, 28 Kas. 218;) and the court expressly instructed the jury that it was introduced for the purpose of impeaching Meixell, and was “not to be considered by them as evidence of the market value of the property in controversy.” Moreover, Meixell was permitted to testify after Kirkpatrick had been recalled, that the latter did not say to him on July 1, 1877, or at any other time, that the bonds were worth one hundred cents on the dollar. Counsel complain severely of the charge of the court, relating to the market value of the bonds, as being erroneous. These alleged errors are threefold: 1 st. That the jury were not distinctly directed to ascertain the value of the bonds and coupons at the time of conversion, and therefore that they were permitted to fix the value thereof at the time of trial; 2d. That — 292 — the court should have directed the jury that there was evidence before them of the value of the bonds and coupons, other than their face value; and that it was the further duty of the court to say to the jury they should be governed entirely by the market value, and give no attention to the par or face value; 3d. That the court gave paramount importance to the face value of the bonds in its directions to the jury, and did not comply with the rule as to damages declared in Meixell v. Kirkpatrick, 29 Kas. 679. These objections are without force. The court said to the .jury = “Where evidence has been been introduced showing the market value at the time of conversion, such market value governs; but where no evidence of value is introduced, then the face value is to be deemed the market value.” Again, the court said to the jury: “You should ascertain the value of the bonds at the time of conversion by the following rule: Prima faeie the value is the amount due on them, both principal and interest; you should, however, in ascertaining their value, consider any and all evidence, if any has been introduced, which tends to diminish their value, and make your estimate accordingly. Having fixed the value at the time of conversion by the above rule, you should deduct therefrom $3,100, being the contract-price, and the $500 paid Kirkpatrick for the assignment of the judgment against Matthewson, making $3,600 in all to be deducted; and upon the remainder you should compute interest at the rate of seven per cent, per annum from the date of the conversion, and add such interest to such remainder. The sum found by such computation will be the value of the bonds to be inserted in your verdict, in case you find for the plaintiff.” Further, the special findings show that the jury valued the bonds at the time, of the conversion at $9,475. Therefore it is clear that the jury understood they were to find the value of the bonds at the time of the first unlawful detention, and that they fixed their value as of that date. The jury were expressly informed that— “ Evidence of the price for which the bonds in controversy, or like bonds and coupons, were sold, was some evidence of — 293 — their market value at the time of such sales, and that where such evidence was given, they should take it into consideration for what it was worth in estimating the market value of the bonds.” As the sales proved were anomalous ones rather than sales-made in the ordinary course of business, the court would have clearly erred if it had directed the jury that they “were to be governed entirely by the sales, and were to give no attention to the par value or face value of the bonds.” Market value signifies a price established by public sales, or sales in the way of ordinary business. (Murray v. Stanton, 99 Mass. 345.) The instruction upon the measure of damages was in substantial compliance with the law declared by this court in Meixell v. Kirkpatrick, supra, and while the trial court did refer to the face value of the bonds, it further stated, “that it was only in the absence of any testimony as to the value that the jury were to take the face value of the bonds in controversy as their market value.” In the instruction containing the words-“which tends to diminish their value,” we understand that, the court meant “which tends to diminish their face value.”’ As thus read, it is not subject to the criticism made against it. Had the defendant below introduced to the jury the evidence in his possession of the market value of the bonds at Lawrence,, St. Louis, and other places, there would have been stronger evidence of the market value of the bonds than any offered before the trial.court; but as no evidence of market value was-offered, excepting the sales already commented upon, it is not strange, although unfortunate to Meixell, that the jury were-largely controlled by the face value of the bonds. It is charged that the court erred in giving judgment for Kirkpatrick against Meixell, for the reason that the special findings of the jury were inconsistent with the general verdict in showing that Meixell did not detain the bonds. True, the jury did find that Matthewson did not sell the bonds to Meixell; that Meixell did not give his check for the bonds that subsequently Meixell did not sell any of the bonds to-Matthewson; and that Matthewson had the actual possession — 294 — of the bonds at the time Kirkpatrick made a demand therefor. If these Avere the only findings of the jury, it might be said with truth that the special findings were in conflict with the general verdict, but other findings of the jury do away Avith the seeming inconsistency. Thus, the jury found that— “ From all the circumstances of the case, the transfer of the bonds and coupons by Matthewson to Meixell on June 30, 1877, and the transfer of a half-interest thereof back from Meixell to Matthewson on July 2, 1877, was a fraudulent scheme entered into by them to defraud Kirkpatrick of the benefit of his purchase, and to. appropriate the bonds and coupons to their oavu use.” Again, the jury found that Meixell .“had such control of the bonds and coupons when Kirkpatrick demanded them, and when this action was commenced, that he could have caused their delivery if he had been pleased so to do.” Under these latter findings and the allegations of the answer that Meixell claimed the bonds as his own, the trial court was justified in rendering judgment against Meixell upon the general verdict, even if he had not purchased them from Forsyth or Matthew-son. If he was in an arrangement to defraud Kirkpatrick and wrongfully deprive him of the possession of the bonds, and such bonds were under his control, the custody of them by Matthewson was also the possession of Meixell. Meixell in his answer insisted that he had purchased the bonds, paid for them, and that Kirkpatrick did.not own them. (Shoemaker v. Simpson, 16 Kas. 43; Hall v. Draper, 20 id. 137; Smith v. Schulenberg, 34 Wis. 50.) This brings us to the complaint that all the special findings above referred to were erroneous as being unsupported by the evidence. ■ We do not think so. There is much in the record, outside of the amendments incorporated at the request of Kirkpatrick, tending to show that the purchase by Meixell Avas collusive rather than actual. ■We have not thought it necessary to comment at length upon the alleged errors of the court in permitting Kirkpatrick to testify to a transaction 'had personally with Forsyth; in ad — 295 — mitting in evidence a bill of sale of the bonds in controversy, purporting to have been executed by Forsyth to Kirkpatrick on June 15, 1877; and in refusing to permit Meixell to introduce in evidence a written notice to Matthewson, purporting to have been executed by Forsyth on June 14,1877, notifying him that he had given Kirkpatrick the refusal of the bonds for $3,100, to be paid any time before July 1, 1877, for the reasons that under the allegations of the answer, Meixell admitted that on June 15, 1877, Forsyth was the owner of the bonds in controversy, and that upon that date Kirkpatrick and Forsyth entered into an agreement whereby Kirkpatrick was to have the refusal of the bonds for $3,100, to be paid before July 1, 1877, and as the memorandum in the answer shows that Kirkpatrick performed his part of the contract when he offered to pay to Matthewson on June 30, 1877, the contract-price. Owing to the allegations of the answer, it was only necessary for Kirkpatrick to prove that Meixell had notice of the contract existing between him and Forsyth prior to his offer to perform his part thereof on June 30,1877; that Meixell’s purchase, or pretended purchase of the bonds, was prior to his demand; that he tendered to Matthewson before July 1, 1877, the amount called for in the written notice set forth in the answer, and the value of the bonds at the time he made a demand therefor. There has been very much drawn into the record which is wholly unnecessary, considering the pleadings, and many matters which otherwise would be material, if Meixell had relied wholly upon a general denial, are no longer matters of substance. Some of the ei’rors alleged are mere irregularities which did not and do not prejudice the rights of the complaining party. It is well settled that “ whatever is admitted in a special defense operates so far as a modification of a general denial.” (Wiley v. Keokuk, 6 Kas. 94; Butler v. Kaulback, 8 id. 668.) Counsel for Meixell denominate the judgment “a highhanded robbery in the name and form of law,” and allege that the case-made, owing to the insertion of cei’tain amendments over their objection, does not fully present to this court “the — 296 — wrongs actually done” upon the trial. As the amendments are so presented that we have before us the case as originally prepared, as well as the case after it was settled, we have taken particular care to read the original case prior to the allowance of the amendments. Therefore we are in the condition to say, apart from a consideration of the amendments allowed, that there is not much in the case, as prepared, calling for sympathy for Meixell. These facts clearly appear from the record as originally made by the counsel now complaining of its mutilation: That on June 15,1877, J. L. Forsyth was the owner of the bonds in controversy; that on that day, Kirkpatrick entered into a contract with him for the refusal of these bonds for $3,100, to be paid before July 1,1877; that Matthewson, the president of the First National Bank of Parsons, in this state, had the control of the bonds; that on June 30, 1877, Kirkpatrick tendered to Matthewson $3,100; that Matthewson said the money was all right; that the tender was good, but that he had sold the bonds to another man, in obedience to instructions from Forsyth; that the excuse for selling them to Meixell? and not keeping them for Kirkpatrick, was, that Kirkpatrick did not tender the $3,100 — the contract-price — before the close of banking hours of said June 30; that neither of the contracts offered in evidence required that Kirkpatrick should make the tender of the contract-price during banking hours; that Meixell, then a director of the Parsons Savings Bank, on June 17 or 18,1877, was informed by its president, Matthew-son, or by its teller, Hawk, of the contract between Forsyth and Kirkpatrick concerning the bonds; that Meixell,-on June 30,1877, went to the Parsons Savings Bank, and about 4 o’clock of that day made some arrangements with Matthewson by which ho was to have the bonds, or some interest therein; that Matthewson testified that Meixell took the bonds for $3,100, and gave the bank his check in payment therefor; that Mat-thewson also testified that he sold the bonds to Meixell as an officer of the bank, and afterward. bought one-half of them back as an individual, and paid $1,550 for them-to Meixell; — 297 — that on June 30, 1877, or July 1, 1877, Kirkpatrick called upon Meixell and told him that he wanted the bonds, and would pay for them; that Kirkpatrick was willing to give the townships which had issued the bonds the benefit of his purchase, and so told Meixell; that Meixell refused to turn over any of the bonds to Kirkpatrick; that Kirkpatrick testified that Matthewson “urged Meixell to turn over the bonds to-him,” saying “he would give him back his money;” that Scudder testified that Meixell answered Kirkpatrick, “that he had bought the bonds, and if there was anything in them, he wanted to make it;” that soon afterward, Kirkpatrick commenced this action to recover the bonds, or their value; that Meixell has vigorously resisted the claim of Kirkpatrick ever-since his demand. Upon these facts, the right to the bonds, or their value, is clearly with Kirkpatrick; in fact, Meixell should have returned the bonds to Kirkpatrick when they were demanded. Meixell was a purchaser — if he made any purchase — with notice of Kirkpatrick’s rights, and therefore, after Kirkpatrick tendered the contract-price to Matthewson, Meixell was not entitled to claim or detain the bonds. We deem it a misfortune to Meixell that the market value of the bonds was not fully established by him in making his defense; but for this Kirkpatrick is not responsible. The record does not disclose that Meixell has parted with all of the bonds. He may, therefore, deliver the bonds and coupons in his possession in satisfaction of the judgment pro tanto, and if he is unable to return all, he will be liable only for the remainder of the judgment, if any remains. We perceive no error on the part of the court in refusing the application of Meixell to withdraw the answer and file a new or amended answer. This application has been twice-presented before to the court for consideration, and no exceptions seem to have been taken upon such prior presentations. The motion was renewed a third time without leave. (Adams v. Lockwood, 30 Kas. 373.) — 298 — We have examined all the other questions presented in the briefs, but do not think it necessary to refer specially to them. The judgment of the trial court will be affirmed. All the Justices concurring.