Cooper v. Crossan , 83 Kan. 212 ( 1910 )

Per Curiam:

This action was to recover damages for fraud in the sale of shares in the capital stock of the Paola Canal and Industrial Company. The findings and judgment were for the plaintiff, Cooper: The defendant, Crossan, appeals.

The defendant’s abstract does not state the nature of the fraud alleged in the petition, therefore the bearing of the evidence abstracted does not appear. It is stated in the abstract that the witnesses for the defendant “show that the holdings of this company is and was one of the best propositions in the country.” Then follow the statements of a witness that he would consider the plant one of the best in the country, that it could water 8000 or 9000 acres, and that the average yield of rice is seven or eight sacks per acre, worth on an average $3.50 per sack, one-fifth of which goes to the water company. The statement of another witness that the property of the company was worth $65,000 is given, and also an excerpt from the company’s charter authorizing the issuance of preferred stock, upon which dividends of seven per cent per annum are to be paid out of net earnings; and in winding up the affairs of the company the preferred stock is made a first lien on all its property. All this may be true, and yet the defendant may have made a fraudulent sale of the stock.

No other evidence than that above referred to was abstracted, except the testimony given by the defendant himself, and there is no statement that all the evidence upon the issue or upon any issue is abstracted. Nor is it stated what the issues were, except the general statement that the petition charged that the defendant had committed a fraud in selling the stock. The abstract says that “there is no evidence to sustain such an allegation,” i. e., the allegation of fraud in the sale of the stock. This is insufficient. Eule 9 of this court provides:

“A party need not include in his abstract . . . all the evidence in order to support a claim on his part that it does not show or tend to show a certain fact, but when such a question is presented the adverse party shall print so much of the evidence as he claims to have that effect.”

This rule was commented on and its application illustrated in Railway Co. v. Conlon, 77 Kan. 324, but the court, said:

“It will be observed that the portion of the rule quoted speaks of ‘a certain fact:’ Its application is obvious where it is claimed, for example, that evidence of a demand or of a notice is wanting. If, however, the general claim be made that a verdict or decision is unsupported by the evidence, and a consideration of the evidence is necessary to determine the question, the evidence must be abstracted by the party making the claim. ... If in consequence of a demurrer to the evidence or a motion for a peremptory instruction it be necessary to consider the evidence generally in order to determine its. legal sufficiency, the party asserting its insufficiency must abstract it. But if the claimed defect lie in the failure to prove some certain fact essential to recovery the application of the rule made in the present controversy will govern.” (pp. 329, 330.)

The abstract does not enable us to determine that there was no evidence to sustain the findings. We can not pass upon the weight of conflicting evidence.

It is not meant that a copy of the evidence should have been set out, but an abstract is required as stated in the Conlon case. If it had been stated that the claim of the plaintiff was based on false representations and what the representations were, and an abstract of the testimony relating to the representations and their falsity had been made, it would have been sufficient. Or if, after abstracting the evidence concerning the representations, it had been stated that no evidence was given tending to show their falsity, or that only the evidence abstracted was given affecting that matter, then it would have devolved upon the other party to abstract any evidence, or additional evidence, claimed to show such falsity.

The defendant’s brief alleges error in the admission of a deposition, and of other testimony, but there is no abstract of any proceeding concerning the deposition. Neither is the testimony objected to abstracted.

The principal contention of the defendant is that the evidence does not support the finding made against him, but as this does not appear from his own abstract, nor from the counter abstract filed by the plaintiff, it must be presumed that such evidence was received, and the judgment is affirmed.