Cooper v. Davis Sewing Machine Co.

Opinion by Clogston, C.: The first question is, what errors are presented by the record? The motion for a new trial presents but two grounds therefor: First, “the judgment is contrary to law, and is not sustained by sufficient evidence.” Second, “in the amount of recovery, the same being too large.” Was the judgment contrary to law? It was founded, first, upon the promissory notes executed by the defendant Cooper, which is pot denied; second, upon the guaranty bonds of all the defendants, which bonds guaranteed that Cooper would pay for all merchandise, machines and goods received by him from the plaintiff. The defendants did not claim that the conditions of these bonds were complied with; and upon a breach of the conditions thereof plaintiff had a cause of action. So by the admission of the indebtedness the liability on the bonds was admitted. But plaintiffs in error insist that, as the amended answer to the first suit was not denied by a reply, it must be taken as true. This is the general rule, and if a reply was necessary, then the plaintiffs in error are correct aud no judgment should have been rendered upon the bond in the first suit. This answer alleges the taking up of the first bond and the giving of a new one in its stead, which left but one guaranty bond in force upon which the defendants would be liable, and that bond being for only $600. But we think the plaintiffs in error are in error in this claim. The amended answer was denied by the reply filed to the first answer, and in the new answer only such things were admitted as were not included in the first. The allegations in the first answer were the same in regard to the giving of the new bond and the taking up of the old one as in the second. This was controverted by a general denial, which was not withdrawn. This left admitted only that certain notes were held by the plaintiff upon which it had made some collections, and asked for an accounting. This new matter must be taken as true unless denied. (Brookover v. Esterly, 12 Kas. 149; Kuhuke v. Wright, 22 id. 467.) [234] The new matter contained in this answer is very indefinite; no description of the notes was given; how many, by whom given, the amount of each, when due, or the probable amount collected thereon; nothing but a general allegation that some notes were held by the plaintiff as collateral security, and that upon these notes some amount had been received. If a reply was necessary, (which we think doubtful,) then such a reply was waived, for no objection was made on the trial to such failure. An accounting was then had as if a reply had been filed. (Nettcott v. Porter, 19 Kas. 131, and cases therein cited.) This leaves but one question: Were the findings and judgment sustained by sufficient evidence, and is the amount of the recovery too large ? This question involves a review of the evidence, and after a careful examination we find evidence tending to sustain the judgment of the court upon each and every item set out in plaintiff’s petition. This court has often decided that if there is any evidence which tends to sustain the findings and judgment it will not review or reverse a case because a judgment is not sustained by the weight or preponderance of the evidence. The question, whether a new bond had been given by the defendants on the agreement that the old one was to be taken up and canceled, was a disputed question, and there was strong evidence offered tending to show this fact, and some evidence by the plaintiff to show that it was given to secure plaintiff against loss on the further sales and advances to be made by it to the defendant E. Cooper, and that his indebtedness was largely increased after the giving of this new bond, tending to show that the defendant Cooper, as well as the plaintiff, regarded it as a security for these new advances and new indebtedness; but this question was one of fact, to be determined by the court or jury trying the cause, and we cannot say that the amount of recovery was too large under this evidence. " It is recommended that the judgment of the court below be affirmed. By the Court: It is so ordered. All the Justices concurring.