D.M. Osborne & Co. v. Ehrhard

• Decision Date: 05 November 1887
• Court: Kansas Supreme Court
• Parties: D. M. OSBORNE & COMPANY v. ADOLPH EHRHARD

15 P. 590

37 Kan. 413

D. M. OSBORNE & COMPANY v. ADOLPH EHRHARD

Supreme Court of Kansas

November 5, 1887

Error from Clay District Court.

THE opinion states the nature of the action, and the material facts. At the May Term, 1885, the plaintiff Ehrhard recovered a judgment against D. M. Osborne & Company for $ 245 and costs. The defendant Company brings the case here.

Judgment affirmed.

M. M Miller, for plaintiff in error.

Harkness & Godard, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Adolph Ehrhard brought an action against D. M. Osborne &amp Company, a corporation under the laws of the state of New York, alleging in substance that on or about the 28th day of June, 1883, he purchased from the agent of the company at Clay Center, Kansas, a combined reaper and binder, for the sum of $ 165; that by the terms of the contract he was to return the machine if it did not work in a good and satisfactory manner; that in payment he gave his negotiable promissory note for $ 150, due the first day of the following October, and paid in cash the sum of $ 15; and that by the terms of the contract the note was to be returned to him if the machine did not work in a good and satisfactory manner. He alleges that after repeated trials of the machine it was found that it would not do the work for which it was sold, and that it was utterly worthless to the plaintiff, whereupon he returned the machine to the defendant's agent and demanded his note. He further states that the agent accepted the machine when so returned, and agreed to return the note as soon as it could be obtained from the company, but instead of doing so, the note was sold and transferred before due to one James Lyon; that on the 10th day of March, 1883, James Lyon brought suit against him in the district court of Clay county upon the note, and that on the 24th day of September of the same year a judgment was rendered against him and in favor of Lyon, for the sum of $ 168.60, together with costs, taxed at $ 15.25, which judgment he was compelled to pay. Ehrhard further alleges that, believing the note was not transferred to James Lyon before maturity and that he had a good and sufficient defense to the action thereon, he in good faith employed attorneys to defend for him in that action, and paid them the sum of $ 25 for their services therein. He therefore prayed for judgment against the company for the sum of $ 223.80 with interest. The defendant company answered by a general denial, and at a trial had with a jury in May, 1885, a verdict was returned in favor of Ehrhard, assessing his damages at $ 245, and the court gave judgment for that sum.

D. M. Osborne & Company, as plaintiff in error, is here asserting that the court below erred in not granting its motion for a new trial of the cause. The grounds of the motion were, "First, that the damages given by the jury in this case are excessive; second, that the verdict given in the case is against and contrary to the weight of the evidence and the law of the case; and third, that the court erred on the trial of the case in giving the sixth and eighth instructions to the jury." Counsel for Erhard claim that the rulings of the court are not reviewable here, for the reason that the motion for a new trial was not reduced to writing, and filed as prescribed by the code; and they cite Douglass v. Insley, 34 Kan. 604, 9 P. 475. The present case does not fall within that authority. The record here does not in terms state that a written motion was filed, but that much is fairly implied. The motion copied in the record is full and formal. It includes the style of the case, formally states the grounds on which it was based, and then purports to be signed by counsel. The record, respecting the motion, recites that "thereupon the defendant filed his motion for a new trial as follows." The fair implication of this language is that it was a written motion, as it could not well be filed if not in writing.

The first contention of the plaintiff in error is, that the damages awarded are excessive to the extent of the allowance manifestly made for counsel fees in defending the action brought by Lyon on the note. The testimony respecting the counsel fees was received without objection, and the only basis for the claim that the expenses should not have been allowed is, that he had notice before the commencement of that suit that Lyon was the bona fide holder of the note before due, and that therefore the expenses incurred were not judicious or necessary. It appears that when the action was brought on the note, Ehrhard consulted reputable counsel, who, after hearing the facts, advised him to defend against the note on the theory that the transfer to Lyon was not bona fide. The defense was made, but was unsuccessful, and he paid his counsel the moderate fee of $ 25. Ehrhard claims, and not without some cause, that he had reason to believe that it was still owned and held by the company. When the defective machine was returned by Ehrhard to the agent of the company, the note was then in the hands of the...