Fritchen v. Jacobs
| Decision Date | 11 November 1933 |
| Docket Number | 30996. |
| Citation | 26 P.2d 448,138 Kan. 322 |
| Parties | FRITCHEN v. JACOBS ET AL. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Agency may not be proved by the declarations of the claimed agent.
2. Agency does not have to be proved by direct evidence, it may be implied from the acts and conduct of the parties; and when such testimony has been adduced, then it is proper to show as part and parcel of the entire transaction and negotiation what the claimed agent said respecting his employment.
3. Other matters complained of examined and held not error.
4. The allowance of a motion for a new trial is a matter resting in the sound discretion of the trial court and its action thereon will not be reversed unless an abuse of such discretion is apparent.
Appeal from District Court, Mitchell County; W. R. Mitchell, Judge.
Action by F. F. Fritchen against Mary Jacobs and E. C. Mueller. From a judgment for Mary Jacobs, plaintiff appeals and from an order granting a new trial as to defendant E. C. Mueller defendant Mueller cross-appeals.
A. E Crane, of Topeka, and N.C. Else, of Osborne, for appellant.
R. L Hamilton, Leon W. Lundblade, and Max L. Hamilton, all of Beloit, for appellee.
This was an action to recover on a note, the defense being that the note was obtained by duress. At the first trial, the court gave an instructed verdict in favor of the plaintiff. On appeal that ruling was set aside. Fritchen v. Mueller, 132 Kan. 491, 297 P. 409. In the decision, the claims of the adverse parties, as disclosed by the pleadings, and the evidence are reviewed at length, and will not be here repeated.
In the last trial, after presentation of the evidence, the cause was submitted to the jury, under instructions, some of which are hereafter referred to, and a verdict returned in favor of each defendant. Thirty-one special questions were submitted and answered. Motion for new trial was filed and denied as to defendant Mary Jacobs and allowed as to defendant E. C. Mueller. The plaintiff appeals and the defendant Mueller files a cross-appeal.
The appellee challenges appellant's right to be heard on this appeal for the reason that the matter was fully adjudicated in Fritchen v. Mueller, supra. There is no showing that such a defense was raised in the trial court, and it cannot be raised here for the first time. No technical reason need be given, however. It is true that the same issue is here presented as at the first trial, but in reviewing the evidence at the first trial, this court was determining only the correctness of the trial court's ruling directing a verdict for the plaintiff, and in the opinion said: "It should be understood, of course, that in discussing these matters in this blunt fashion this court does not intend to adjudicate for itself the controverted facts of this case." Page 495 of 132 Kan., 297 P. 409, 411.
And the cause was remanded for a new trial.
Among other matters complained of is that defendants were permitted to state what the attorney, N.C. Else, said respecting his employment. It would serve no useful purpose to recite the questions asked and answers returned as to conversations wherein Else was quoted as making assertions he represented the payee of the notes sued on. Of course, agency could not be proved by the declarations of the claimed agent. See 2 C. J. 935, and cases cited. It is true that officers of the bank denied that Else was its agent or the agent of its officers, and that plaintiff denied Else was his agent, but there was also much testimony concerning the negotiations leading up to and during the execution of the notes, showing the part taken by the plaintiff and other officers of the bank, by Mr. Else, and the defendants. Agency did not have to be proved by direct evidence; it could be implied from the acts and conduct of the parties (see Fritchen v. Mueller, supra), and when such testimony was adduced, then it was proper to show, as part and parcel of the entire transaction and negotiations, what the claimed agent said respecting his employment. 2 C. J. 939. Some complaint is made that evidence as to Else's statement was received before showing of his agency was forthcoming. While it would have been more correct to have made the showing in an orderly manner, we are not able to see where appellant was prejudiced. The jury was warranted in finding in answer to question 1, that Else was not the agent of defendant Mueller, and in answer to question 4, that he was the agent of the payee bank.
In connection with the proof of Else's statements, the abstract and counterabstract disclose contradictory versions of what occurred. At the close of defendants' case, appellant moved to strike out all evidence with respect thereto, apparently on the contention it had not been otherwise shown that Else was the bank's agent. Appellant's version is that the motion was sustained. Appellee's version is that it was denied. The counterabstract recites: "The Court: The motion should be denied, it shouldn't be stricken out, but the jury will have to be instructed that they cannot consider as any evidence of agency, and that they cannot consider in this case--consider Else's statements, unless they first find that he was the agent of the bank."
The court's instructions with respect to showing agency did not cover the above in any very adequate way, but appellant did not request any further instruction, and it is too late to complain now.
Appellant complains that the answers to certain questions are without support in the evidence. Question 5 asked what officers of the bank employed Else and the jury answered: "F. F. Fritchen, May and Lutgen."
The jury had heard all of the evidence as to how Mueller happened to be at Else's office; that the three named men were there, conferred with Else, then informed Mueller of their demands, and thereafter that Else had visited Mrs. Jacobs in carrying out the arrangement of getting her to sign the notes, and from that they were warranted in finding that the three named employed Else, even though there was no witness who testified directly to it, and even...
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... ... Trading Company (Mont.) 193 P. 1112; ... Goddard v. Motor Company (Utah) 223 P. 340; ... Little v. Brown (Ariz.) 11 P.2d 610; Fritchen v ... Jacobs (Kans.) 26 P.2d 448. It is next complained that ... the verdict was the result of compromise. The point was not ... assigned in the ... ...
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Slocum v. Kansas Power & Light Co.
...(Bateman v. Roller, 168 Kan. 111, 211 P.2d 440; Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P.2d 20; and Fritchen v. Jacobs, 138 Kan. 322, 26 P.2d 448.) In Bishop v. Huffman, 175 Kan. 270, 262 P.2d 948, the court '* * * an order of a trial court sustaining a motion for a new tri......
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McFadden v. McFadden
...a new trial ordinarily rests in the sound discretion of the trial court and seldom is the basis of reversal on appeal. Fritchen v. Jacobs, 138 Kan. 322, 26 P.2d 448; Durkin v. Kansas City Public Service Co., 138 Kan. 558, 27 P.2d 259; Wentworth v. First Trust Co., 147 Kan. 466, 77 P.2d 976.......
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Bateman v. Roller
...be reversed unless abuse of discretion is apparent. See Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P.2d 20; Fritchen v. Jacobs, 138 Kan. 322, 26 P.2d 448. Many other decisions to the same effect appear in our reports but to list them would merely burden this opinion. They can b......