Gafford v. Hall

Opinion by Clogston, C.: The plaintiff now insists that the record presents three substantial errors, any one of which is sufficient to and requires a reversal of the judgment: First, that the evidence does not support the special findings of the jury; second, that the court committed error in refusing to render judgment on the pleadings, notwithstanding the verdict of the jury; and third, that the court erred in the instruc [168] tions to the jury. The jury found substantially on all the issues in favor of the defendant, and found in answer to the questions submitted to them that the plaintiff did not take this note in question as collateral security for a bona fide indebtedness due from Leslie to him,, and that plaintiff did not take the note in good faith, without knowledge; and that there was collusion and fraud between the plaintiff and Leslie at the time plaintiff received the note from Leslie. It is true that there is but little testimony to support these findings. The weight of evidence seems to be against them. But under the rule adopted by this court, that before the findings of a court or jury will be set aside it must be shown that there was no evidence to sustain such findings, all -that is necessary to sustain the findings is that there be some competent evidence submitted to the jury upon each question found by them. Plaintiff claims that he was in possession of this note for about two years after it became due before he presented it for payment. There was evidence showing that fact. This was a circumstance that was competent to go to the jury. It was a question for' them to answer whether or not under the circumstances a party holding a note as collateral security would hold the same two years after it became due, without making any demand or presenting the note for payment. The evidence shows that the plaintiff was on several occasions at the store of the defendant, and that he made no mention of the note, and did not ask for payment. He gave as a reason that he was requested by Leslie not to present it. This was a circumstance that the jury might say showed bad faith. Again, there was evidence tending to show that in the preparation of this case for trial, in the taking of depositions, that Leslie appeared at the different times when depositions were taken, prompted the attorneys, furnished information, and seemed to be interested in the result; while the plaintiff, being present only a part of the time, seemed to take no interest in the proceedings. This was substantially all the evidence the record discloses tending to show that there was any collusion between plaintiff and Leslie, or a knowledge on the [169] part of the plaintiff of the circumstances surrounding the giving of this note; evidence upon which a jury which saw the witnesses, their demeanor and appearance on the witness stand, might find sufficient to answer the questions as they did. As to the second proposition, the answer we think discloses and sets out that which, if true, was a defense to the action. It alleged that this note was given in a transaction between defendant and Leslie. It is true the note was given under such circumstances as .would have .rendered the transaction void under the statute of frauds; it was given in a transaction to prevent the collection of claims against Leslie, but afterward this transaction was annulled, the partnership property was sold, and a satisfactory agreement made by which this note was to be given up and canceled. If this was true, and plaintiff had full knowledge of the fact, the note would be of no avail. The third error alleged is, that the court erroneously instructed the jury. The record shows that the court instructed the jury substantially as follows: “That the burden of proof was on the plaintiff to establish the fact that he purchased the note in controversy before maturity, for a valuable consideration, without notice of any fraud or want of consideration.” This instruction was erroneous. (See Mann v. National Bank, 34 Kas. 746.) And while this instruction was wrong, and perhaps misled the jury, yet the record shows that no exception was taken to the giving of it, without which no error can be considered. This has been the rule laid down in this as well as all other courts. (Comm’rs of Allen Co. v. Boyd, 31 Kas. 765; Crowther v. Elliott, 7 id. 235; Lalonde v. Collins, 5 id. 361.) We therefore think that under the pleadings, evidence, and findings of the jury, the judgment of the court must be sustained. It is recommended that the judgment below be affirmed. By the Court: It is so ordered. All the Justices concurring.