Fontron Loan & Trust Co. v. Korzuszkiewicz , 125 Kan. 725 ( 1928 )

The opinion of the court was delivered by

Burch, J.:

The action was one by the administrator of the estate of Kazmier Korzuszkiewicz to recover the value of property owned by decedent in his lifetime and converted by defendants, and to recover unpaid rent of land accruing to the decedent in his lifetime. Judgment was rendered for defendants, and plaintiff appeals.

Korzuszkiewicz died intestate on May 24, 1920. Litigation relating to his estate followed, and this is the fourth appeal to this court. The cases previously decided are: Winkler v. Korzuszkiewicz, 112 Kan. 283, 211 Pac. 124; id., 117 Kan. 261, 231 Pac. 46; id., 118 Kan. 470, 235 Pac. 1054.

The administrator sought to recover from Mary Korzuszkiewicz the value of fifty-four head of cattle. In November, 1918, her father gave Mary a bill of sale of the cattle. The administrator contends the bill of sale shows a gift of the cattle and the gift was not completed by delivery. Delivery of the written instrument consummated the gift, without delivery of the cattle. (“Delivery in Gifts of Chattels,” by Philip Mechem, 21 111. Law Rev. 576 et seq.)

The administrator contends Korzuszkiewicz’s signature to the bill of sale was forged. No evidence of forgery was introduced at the trial. The administrator relied on a stipulation that the question whether the signature was forged should be determined by verdict and final judgment in another Korzuszkiewicz case involving genuineness of signatures to deeds of land. The verdict in that case was that the deeds were forgeries, and judgment was rendered accordingly. The judgment, however, was reversed, and a new trial was ordered by this court. (Winkler v. Korzuszkiewicz, 118 Kan. 470, 235 Pac. 1054.) Therefore both conditions of the stipulation essential to conclusiveness, verdict and judgment, are absent.

To sustain the cause of action for rent it was necessary to prove that proceeds of the sale of crops had not been accounted for. Plaintiff admits the evidence was unsatisfactory. o It would serve no useful purpose to give space to the evidence and to a discussion of it here. The court has canvassed the evidence, and is not able to declare the district court erred in concluding plaintiff had not established right to recover any definite sum.

Mary was allowed to keep a Liberty bond which the administrator sought to recover, on her own testimony, which the court appears to have believed.

The judgment of the district court is affirmed.