Friend v. Miller

• Decision Date: 07 October 1893
• Parties: H. F. FRIEND et al. v. C. R. MILLER
• Court: Kansas Supreme Court

34 P. 397

52 Kan. 139

H. F. FRIEND et al. v. C. R. MILLER

Supreme Court of Kansas

October 7, 1893

Error from Sedgwick Court of Common Pleas.

ACTION to recover upon a promissory note for $ 1,700, executed by H F. and J. A. Friend in favor of C. R. Miller, payment of which was guaranteed by W. R. Tucker and William Mathewson. The defendants below answered, setting up two defenses: The first, that the note was executed without consideration, and was given upon an agreement by the Friends and one N. E Osborn with Miller, wherein Miller agreed to dismiss all actions then pending in court wherein he was plaintiff and the Friends and Osborn were defendants, and to deliver H. F Friend certain deeds and valuable papers then under the control of Miller, and to keep Friend harmless from further costs and expenses arising out of the actions to be dismissed. This agreement, it is alleged, Miller failed and refused to perform, by reason of which the consideration of the note had wholly failed. The second defense avers that the only consideration for the execution of the note was an agreement entered into between the Friends and Osborn on the date of the execution of the note, in which Miller, in consideration of the giving of the note, among other things agreed to forbear, discontinue and refrain from prosecuting a certain criminal action pending against H. F. Friend and N E. Osborn in the court of the territory of Utah, holden in Salt Lake City, wherein Friend and Osborn are charged with the commission of a felony under the laws of the territory, which act would constitute a felony under the laws of Kansas, to wit, the forging of a deed to real estate situate in the county of Sedgwick, state of Kansas, and which was filed and recorded within said county as a valid and genuine instrument. It was further alleged, that the said Miller then and there agreed to forbear and refrain from the prosecution of the said Friend and Osborn at any time or place for the forging or uttering of the alleged forged deed, or for any offense growing out of the alleged forgery of the same. The reply was a general denial. On the trial, it was ruled that the defendants had the burden of proof and the opening and closing. They introduced their evidence, after which an application was made to amend the answer so as to conform to the facts proven, but leave was not granted. Miller then demurred to the evidence which was offered, and the court sustained the same, and directed the jury to return a verdict in favor of the plaintiff below for the full amount of the note, with accrued interest thereon. Exceptions were taken to the rulings of the court and to the refusal of a motion for a new trial. The defendants come to this court.

Judgment reversed and cause remanded.

Amidon & Conley, for plaintiffs in error:

We claim that the court erred in sustaining the demurrer to the evidence offered by plaintiffs in error. If there was some evidence fairly tending to sustain the alligations of the answer, it should have gone to the jury. See Brown v. A. T. & S. F. Rld. Co., 31 Kan. 1; Fox v. Campbell, 49 id. 331; Sullivan v. Insurance Co., 34 id. 177; K. P. Rly. Co. v. Couse, 17 id. 571; Jansen v. City of Atchison, 16 id. 383; Waterson v. Rogers, 21 id. 529. There being no variance between the answer in this case and the evidence which would mislead the adverse party, all of the evidence fairly tending to sustain the allegations of the answer above referred to should have been admitted. See Zeininger v. Schnitzler, 48 Kan. 66.

We believe that the evidence offered in this case clearly establishes the fact that the only consideration for the note sued upon was the promise of Miller to turn over the forged deed and the depositions of Osborn and Friend, including the signature of Rev. John Murphy signed by Osborn and the defendants, in the criminal suit pending in Salt Lake City. We think, also, that the evidence clearly shows that Mathewson and Tucker signed the note for the expressed and only purpose of having the Salt Lake criminal prosecution finally settled. There can scarcely be any doubt but that the evidence offered clearly establishes that fact. The answer is broad enough to come within the provisions of § 161 of the crimes act (Gen. Stat. of 1889, P 2298), and the evidence certainly is strong enough, under said section, to warrant a jury in finding that the note sued upon was given in violation of said section.

In order to avoid the note sued upon, on the ground that it was given to compound a felony, all that was necessary upon the part of the plaintiffs in error to show was, that there was some agreement or promise on the part of the defendant in error to forbear prosecution for the crime above referred to, or to suppress the evidence that would tend to prove it. Now, the evidence clearly shows that the defendant in error did promise, contract and agree to do this identical thing. See Weber v. Barrett, 125 N.Y. 18. We think, if the evidence fairly establishes the fact that an agreement or promise to conceal the evidence discontinues the prosecution, or the promise to compound the felony was an element inducing the execution and delivery of the note, then the defendant in error cannot recover. See Haynes v. Rudd, 83 N.Y. 257; Met. L. Ins. Co. v. Meeker, 85 id. 614; McPherson v. Cox, 86 id. 427; Dunham v. Griswold, 100 id. 224. Also, see Haynes v. Rudd, 102 N.Y. 372, 376.

Stanley & Hume, for defendant in error:

Confining ourselves to the issues made by the pleadings, we insist that the demurrer was well taken, unless the evidence proved, first, that a criminal suit was pending in the courts of the territory of Utah, wherein H. F. Friend and N. E. Osborn were charged with and indicted in said court for the commission of a felony under the laws of said territory, the commission of which act would constitute a felony under the laws of the state of Kansas, to wit, for forging a deed to certain real estate in Sedgwick county, Kansas; second, that said Miller agreed to forbear, discontinue and refrain from prosecuting said action.

We contend that the evidence failed to show either of these propositions. The testimony by which the plaintiffs in error sought to establish the fact that a criminal prosecution of the kind mentioned was pending in the territory of Utah consisted of copies of papers purporting to be an indictment with indorsements thereon, and a recognizance with indorsements thereon. The case-made contains a governor's warrant and return of the sheriff, but this does not appear by the case-made to have been introduced in evidence. To the introduction of this testimony the defendant in error objected, as being incompetent, irrelevant, and immaterial, "it not being the record of any court, and there not being any evidence that there was any such court as that specified in the indictment." Without this evidence, there is an absence of proper proof to show that any action was pending in the territory of Utah against the plaintiffs in error, Friend and Osborn. If the testimony offered is incompetent, then the court erred in its admission; and if the court erroneously admitted the evidence, and this court should now so find, it must treat the case as though such evidence had not been admitted, in which case there would be a total failure to prove that a prosecution was pending in the territory of Utah, and all other testimony relative to Miller's action with reference to the case in Utah would be irrelevant and immaterial.

We hold that these proceedings were not sufficiently authenticated to entitle them to be used as evidence in the courts of this state. We are aware that this court, in passing upon this question, has particularly said that the judgments or proceedings of the courts of sister states, authenticated as the one in question, are properly authenticated, and may be used as. evidence. This matter is pretty fully covered in the cases of Dodge v. Coffin, 15 Kan. 277, and Haynes v. Cowen, 15 id. 637. These cases, however, proceeded upon the theory that the courts of one state will take judicial notice of the constitution of sister states, so far as such constitution defines the jurisdiction of the courts of such state.

Under the rule that, when parties reduce an agreement to writing, it is presumed to embrace the whole understanding between them at the time, all of the testimony showing any other understanding or agreement before the written agreement was signed was irrelevant and immaterial; and if it was excluded, it was properly excluded, and all other evidence upon the subject ought to have been excluded and cannot be considered here. The agreement in writing was solely upon the subject of the settlement between Miller, Osborn, and Friend. It was full and complete upon that subject. It covered all that was necessary to be embraced in any agreement, showing a full and complete settlement; and parties ought not to be allowed to go upon the outside and show an altogether different agreement from that reduced to writing. If the demurrer to the evidence was properly sustained, there was nothing then to be done except for the court to render judgment upon the note, the execution of which had not been denied.

Noah Allen, for plaintiffs in error in reply:

There is no sacredness about a written document tainted with fraud or...