Barnett v. Williams , 7 Kan. 339 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

i. Evidence,-, producea. %_Motion t0 evidence. Defendant in error sued plaintiff in error to recover damages for the conversion of 4,000 bushels of corn. He claimed title by purchase from one of three partners. The fact, the time, the conditions, and the good faith of the purchase, were disputed. He never had actual possession of the corn. There were 6,000 bushels altogether, in two cribs, and there never was any separation of the 4,000 bushels from the remainder. His right to recover rested on proof of a purchase. On trial he testified to the time, the fact, and the conditions of his purchase. Upon cross-examination it was disclosed that a bill of sale had been executed by the vendor to him at the time of sale: Counsel for plaintiff in error thereupon moved to exclude the above testimony unless the bill of sale was produced, which motion was overruled and exception taken. In this we think was error. "Where one of the main questions in dispute, the initial point in the case, is an alleged purchase, and it is disclosed that that alleged purchase was concluded in and is evidenced by a bill of sale, all parol testimony should be excluded until the writing is produced. The latter is the best evidence. It may show that the property claimed was notin point of fact included in the purchase, or that it was made at a different time, or that something was to be done before title vested in the purchaser. Dunn v. Hewitt, 2 Denio, 637, is a case exactly in point. This was an action before a justice of the peace in trespass for a wagon. “ The plaintiffs claimed to have purchased it of Marshall, and called P. Dunn as a witness to prove among other things the fact of such purchase. He testified to the purchase as a matter within his knowledge, and was cross-examined by the defendant. The plaintiffs again examined him, and upon a further cross-examination he disclosed for the first time the circumstance that a bill of sale had been ,given by Marshall upon the purchase by the plaintiffs.” A motion was then made to strike out the parol testimony m regard to the purchase, which was overruled and exceptions taken. The supreme court held this ruling error, and reversed the judgment. Jewett, J., giving the opinion of the court, speaking of the bill of sale, uses these words : “.It might have shown a different transaction than that sworn to by Nunn. At all events, I think it should have been produced, or its absence accounted for, under the general.rule upon parol evidence, if the contract was admissible.” See also Bonesteel v. Flack & Glynn, 41 Barb. 435; Van Ostrand v. Reed, 1 Wend, 432. The plaintiff in error was in time with his objection to parol testimony. His motion was made as soon as the fact of a bill of sale was disclosed. We perceive no other error in the admission or rejection of testimony.

Instructions; refusal of. Several instructions were asked for by plaintiff in error, same of which were given, and others of them'were refused : but inasmuch as the record fails to show whether the instructions so given are all that were given, it may be that those refused were refused because they had been already once given by the court in his charge.

Warehouse receipts. A good deal is said in the briefs of counsel concerning the rights and title of a commission merchant advancing money on warehouse or crib receipts. It does not appear satisfactorily from the testimony for what portion of the 6,000 bushels crib receipts were out; nor whether any were transferred to defendant in error; nor what became of those which passed into the hands of the commission merchants. Under these circumstances we do not feel like considering the law applicable to such questions, but content ourselves with saying that the general doctrine laid down in Gibson v. Stevens, 8 How., U. S., 397, meets our approval.

The judgment of the court below must be reversed, and a new trial ordered.

All the Justices concurring.