Walsh Mercantile Co. v. Fullam

Opinion by Holt, C.: The plaintiff in error, as plaintiff, recovered a judgment in the Leavenworth district court, at the September term, 1887, for $68.25, against John Fullam; and Ellen Fullam recovered against plaintiff a judgment for costs. The plaintiff complains of the judgment in favor of Ellen Fullam, claiming there should have been a judgment against both John Fullam and Ellen Fullam, as they were partners in the business of selling liquors in Leavenworth. The agent of the plaintiff claims that the liquors for which this action was brought were sold to both parties. This is denied by both defendants and their daughter, and the written order for wines and liquors offered in evidence by plaintiff was signed by John Fullam alone. Upon this conflicting and contradictory testimony the jury found in favor of the defendant, Ellen Fullam. From a careful examination of the record we are inclined to think that the verdict was supported by a preponderance of evidence. In any event, under the well-established rule of this court, we shall not disturb the judgment based upon this verdict, there being substantial evidence to sustain it. Another complaint of the plaintiff is, that the court erred [182] in its instructions to the jury concerning a certain order for $16.25 for wines and liquors, given by John Fullam, at Leavenworth,'Kansas, to the agent, and by him forwarded to plaintiff at St. Joseph, Missouri. We are precluded from examining this alleged error, for the reason that neither the refusal to give the instruction asked nor the giving of the instruction submitted was excepted to by the plaintiff. (Gafford v. Hall, 39 Kas. 166.) These are the only errors complained of. We recommend that the judgment be affirmed. By the Court: It is so ordered. All the Justices concurring.