Bell v. Rankin , 1 Kan. App. 209 ( 1895 )

The opinion of the court was delivered by

Dennison, J.:

The brief of the plaintiff in error in this case has been prepared without any regard whatever to rule 7 of this court. On page 6 of his brief the plaintiff in error says : £ ‘ The first error to which I desire to call the court’s attention is the objection to the introduction of a letter on page 37 of the record; ” so we take it for granted that this is the first error complained of. A copy of the letter is as follows :

££Tribune, Kas., June 30, 1889. I, John W. Rankin, do hereby direct and appoint S. Wallace Rankin as my agent to seize and hold under chattel mortgage the stock of general merchandise owned by Rankin Bros., contained in a store building situated on lots 10 and 11, block 14, in the city of Wellsville, Franklin county, Kansas, and to proceed to the sale of the same to satisfy said mortgage. — John W. Rankin.”

To the introduction of this letter the defendant objected, for the reason that it contradicts the testimony of the witness, and is irrelevant and incompetent, which said objection was overruled and excepted to. This objection was very properly overruled. The letter was 'entirely competent and material; is the very best proof that John W. Rankin did direct and appoint S. Wallace Rankin as his agent to seize and hold these goods under the chattel mortgage, and to proceed and sell the same to satisfy the mortgage; and, in the absence of any other authority, this was all the power he did have, and the statement that it contradicts the testimony of the witness is no ground for refusing its introduction. If there is a contradiction in the testimony of this witness, it certainly would not be prejudicial to this plaintiff in error, but, on the contrary, would be beneficial to him. This defendant in error rightly says in his brief, “there is no rule of law which prevents a party testifying in his own behalf from contradicting or impeaching himself.”

The attorney for the plaintiff in error argues the facts in the case, and on page 10 of his brief concludes as follows:

“I have called the court’s attention to this matter because we believe that the verdict is contrary to the evidence, and that a plainer case of fraud was never presented to a jury.”

We are at a loss to determine whether this is intended as an argument on a question of law or fact, and whether it is expected this court will determine the matter on questions of fact which have been determined by the jury, where the same have been properly submitted to them by the court after hearing all the evidence, or whether the counsel expects us to consider this an error of law by the court, and expects us to reverse the case for this cause. This question of fraud was raised in the pleadings, and the' jury found that the note and mortgage given by Rankin Bros, to this defendant in error was a valid one, given for a valuable consideration, and that defendant, by his agent, S. Wallace Rankin, took possession of the goods, and that the transaction was all in good faith. The jury having found these facts in favor of this defendant in error, it is not the province of this court to disturb them; and, as to the statement that the verdict is contrary to the evidence, there is sufficient evidence to sustain the finding of the jury.

The next error complained of by the plaintiff in error is in the introduction of the evidence of Collingsworth as to the conversation and circumstances which led up to the trade made between S. Wallace Rankin and Collingsworth of the balance of the goods. The question as to this trade was not raised by the pleadings, but was first drawn out upon the cross-examination of S. Wallace Rankin. It was then developed that Rankin made a conditional trade of the balance of the goods with Collingsworth for two quarter-sections of western land, and thereafter the defendant in error introduced the deeds to the land, and a conditional hill of sale, with the invoice attached, in evidence. The deeds import a consideration of $1,800, and show incumbrances of $649.33. The invoice shows the goods to he valued at $1,800. Th'e following is a copy of the hill of sale :

“Wellsville, Kas., July 6, 1889. Know all men by these presents, that I, the undersigned, have this day sold and delivered to T. W. Collingsworth the goods, wares and merchandise now remaining in the store-room lately occupied by Rankin Bros., in Wellsville, Kas., held by me under a chattel mortgage, in consideration of certain land in Finney and Kearny counties, Kansas, this day conveyed to me by said T. W. Collingsworth and wife. In case said Collingsworth should not be able to hold the goods, I am to convey to him said lands and make good to him any expense he may he put to in defending said goods. An estimate and invoice of the above-mentioned merchandise is hereto attached. — J. W. Rankin, by Wallace Rankin, agent for mortgagee. Witness : T. J. Gregory.”

The, evidence of Collingsworth was to the effect that he was in the store talking to Wallafce Rankin after there had been two attachments taken out, and proposed to buy the remainder of the goods, and proposed to trade him a couple of pieces of land; that they finally agreed on a trade, and he then went to Ottawa and. sought advice as to whether Wallace Rankin had a right, as the agent of his father, to trade for the goods'. He was told that he had, and made a deal for the land, and that he insisted on the condition being put in the agreement that, in case he could not hold the goods, the land was to be reconveyed to him; that he told Wallace Rankin that the land cost him $3,000 ; that he was willing to give him the land for the goods, but that the talk was that the land had depreciated in value, and was not worth as much as it had been; and in his redirect examination he testified that all the goods had been taken from him, and none of them had ever been returned, and that he had not been allowed to keep any of the goods, or any part of the proceeds of any of them, and that he never sold any of them. There is nothing in this testimony tending to contradict or vary the terms of the written agreement between these parties. The terms of the deeds, bill of sale and invoice are not very explicit, and evidence had been introduced, over the objection of this defendant in error, tending to make the terms uncertain and ambiguous.

If “All written contracts may be examined by the light of extrinsic and surrounding, circumstances. And, while it is true that parol evidence can never be introduced to contradict or vary the terms of a written contract, (except when directly attacked in a court of equity for fraud or mutual mistake,) yet parol evidence of surrounding facts and circumstances may always be introduced to explain the terms of a written contract where such terms are not, in and of themselves, sufficiently plain and obvious, or'where other evidence has already been introduced tending to make such terms uncertain or ambiguous.” (Simpson v. Kimberlin, 12 Kas. 579.)

This plaintiff in error had been permitted, upon cross-examination, to draw out considerable of the facts and circumstances under which said trade was made, and the court very properly permitted the introduction of the testimony objected to. This plaintiff assigns as error the refusal of the trial judge to permit this plaintiff in error to show that Collingsworth was not relying upon the contract of the sale of the goods, but was pursuing the goods. This evidence was properly excluded. This defendant in error was entitled to his legal rights, irrespective of whatever notion or view of the case Collingsworth might take.

The next assignment of error is in overruling the motion of plaintiff in error for judgment on the special verdict of the jury. The jury found specially that the value of the goods left in the possession of the plaintiff, after the levy of attachment in the case of Glenn v. Rankin Bros., was $8,349.32, and that said goods were traded conditionally to T. W. Collingsworth for property, and that the amount due upon the note of this defendant in error was $2,846.50. The plaintiff in error claims that there was no evidence to sustain the special finding of the jury that the trade of T. W. Collingsworth was a conditional one. The bill of sale of the goods shows that the trade was a contingent or conditional one. The jury found that the mortgage to J. W. Rankin was a valid one, given to secure an honest, existing debt, and that he was entitled to the possession of the goods tinder his mortgage. This being true, he was entitled to hold said goods against everybody until he had realized from them enough to pay him the amount of his note and mortgage and the reasonable costs and expenses of converting them into money to make such payment; and when his note and mortgage had been fully paid, the balance of the goods would have been subject to the claim of the creditors of Rankin Bros. Had the trade to Collingsworth been a complete transaction, Rankin would have appropriated the goods which were traded to Collingsworth, and which, according to the special findings of the jury, were of the value of $3,349.32. The special findings of the jury established Rankin’s claim at $2,846.50 ; therefore the goods appropriated would be the full payment of the note and mortgage of said Rankin and leave over $500 to be applied to the payment of costs, and the balance to have been turned over to Rankin Bros., or subject to the demands of their creditors. The condition in the trade are set out in the bill of sale, and provide, in case Collingsworth should not be able to hold the goods, that Rankin is to convey to him said land and make good to him any expense he may be put to in defending said goods. According to the evidence in this case, Collingsworth was not able to hold the goods, but they were seized by the creditors of Rankin Bros., and taken out of his possession; and there is nothing in the evidence to show that he ever realized one dollar from them, or that J. W. Rankin has ever received any part of the $2,846.50 due him upon the mortgage of Rankin Bros. The evidence in this case all tends to show that the trade was contingent or conditional upon the fact that Collingsworth could hold said goods, and was not a completed transaction until it was ascertained whether he could or could not hold them. The fact that the goods were at that time out of his possession and had been seized by the creditors of Rankin Bros., considering the other evidence in the case, warranted the jury in finding that the trade was a conditional one. The goods were not appropriated by J. W. Rankin and used for his benefit, but were seized by the creditors of Rankin Bros. The motion of plaintiff in error for judgment on the special verdict of the jury was properly overruled.

The only other assignment of error is in the refusal of the court to give certain special instructions asked for by this plaintiff in error. We have examined very carefully the instructions asked and the instructions given, and we find the instructions given by the learned judge cover the law in the case, and that no material error was committed in refusing to give the special instructions. The judgment of the court below is affirmed.

All the Judges concurring.