Gano v. Wells

Decision Date11 June 1887
Citation36 Kan. 688,14 P. 251
PartiesJAY GANO v. JOHN D. WELLS, et al
CourtKansas Supreme Court

Error from Marshall District Court.

ACTION brought on May 17, 1884, by Jay Gano against John D. Wells James S. Warden, and Thomas Johnson, to dissolve a copartnership existing between Gano and Wells, and for an accounting between them. At the March Term, 1885, the case was tried before the court and a jury. In answer to the following questions, the jury made the following findings, to wit:

"1. What was the value of the horse in controversy on the 16th day of May, 1884? A. $ 341.60.

"2. How much did the defendant James S. Warden pay the defendant John D. Wells for said horse? A. $ 200.

"3. How much did the defendant James S. Warden agree to pay to the defendant John D. Wells for said horse? A. $ 200.

"4. At the time James S. Warden purchased the horse from John D Wells, had he knowledge or notice that John D. Wells and plaintiff, Jay Gano, were partners in said horse? A. He had.

"5. Did James S. Warden and John D. Wells, in the purchase and sale of said horse, agree together for the purpose and with the intention of cheating and defrauding plaintiff, Jay Gano out of his interest in said horse? A. They did not.

"6. At the time said horse passed into the possession of said Warden from Wells, and from defendant Warden to defendant Thomas Johnson, was there at that time any agreement or understanding that said horse was to be the property of said Wells, or that said Wells thereafter had any interest in said horse? A. There was not; he had not.

"7. Was said sale from Wells to Warden a pretended sale, or was it made in good faith? A. In good faith.

"8. Did Wells pay over, or offer to pay over, to Jay Gano,his one-half of the proceeds arising from the sale of said partnership property before the commencement of this suit? A. He did not.

"9. How much, if anything, on the 16th day of May, 1884, was the defendant Wells indebted to the plaintiff, Gano, for service and money expended in the care of the partnership property? A. Nothing.

"10. Did the defendant Wells, when he sold the horse to Warden intend to defraud the plaintiff, Gano, out of his interest in the partnership property and in the horse, or any part thereof? A. He did not.

"11. Was Thos. Johnson agent for Wells in taking and holding possession of the horse on or after the day of sale? A. He was not.

"12. For whom did defendant Thomas Johnson act in taking possession of and holding the horse in controversy? James S. Warden.

"13. Did the defendant John D. Wells agree to pay to the plaintiff, J. Gano, the sum of $ 12.50 per month as his (Wells's) portion and part of the compensation of said Gano for taking care of the partnership property? A. He did not.

"14. How many months did plaintiff, Gano, take care of the horse? A. About thirty-three months.

"15. Is Jay Gano under the contract entitled to have pay for doctoring the horse? If so, how much, if anything, is the plaintiff, Gano, entitled to recover of Wells for doctoring the horse in controversy? A. Not anything."

Upon the foregoing findings, and the facts admitted in the pleadings, the court dismissed the action as against Warden and Johnson, and rendered judgment for $ 106.50 and costs, in favor of Gano and against Wells. Gano brings the case to this court for review.

Judgment affirmed.

J. A. Broughten, and E. A. Berry, for plaintiff in error.

John V. Coon, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The first claim of error in this case is the introduction in evidence of the deposition of J. B. Smith. This was at the trial, and the objection to the evidence and the exception taken are as follows:

"To the introduction of said deposition and the evidence therein contained, and to each and every part thereof, the said plaintiff at the time objected, on the ground and for the reason that the same was incompetent and irrelevant; which objection was by the court overruled; to which ruling of the court the said plaintiff at the time duly excepted."

It will be seen from this language that there was only one objection and that this objection embraced the whole of the deposition, although it stated that it was to each and every part thereof. Such an objection we think is hardly sufficient, as some portions of the deposition might properly have been read in evidence. The party objecting should have designated the different parts objected to. Objecting to the whole of the deposition, in the lump, although the statement is "to each and every part thereof," is not sufficient. The particular portions of the evidence of the witness J. B. Smith contained in this deposition are with reference to the horse in controversy, and are as follows: "We speeded him for a mile. I discovered something was the matter with his heart, as near as I could make out." The witness then stated that he had noticed this at other times, and then said: "He is liable to drop dead at any time when driven at speed." These particular portions of the deposition were not objected to on the...

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9 cases
  • Meisch v. Sippy
    • United States
    • Missouri Court of Appeals
    • 17 Noviembre 1903
    ...and be used on a motion for a new trial. 14 Ency. Pl. and Prac. 903, last paragraph; Schoofield v. Bunton, 20 Colo. 139; Gano v. Wells, 36 Kan. 688; Erwin v. 29 Ind. 95; Krudenier v. Shields, 70 Iowa 428; Jones v. State, 89 Iowa 182; Winslow v. Morrill, 68 Mo. 362; People v. Gall, 149 N.Y. ......
  • People v. Ortiz
    • United States
    • Illinois Supreme Court
    • 18 Febrero 1926
    ...of the trial court. Oral testimony may be heard upon such a motion. Schoolfield v. Brunton, 36 P. 1103, 20 Colo. 139;Gano v. Wells, 14 P. 251, 36 Kan. 688. Whether the witness Happ, with or without reason, declined to make an affidavit, is of little consequence, for he was present in court ......
  • Bowling v. Garrett
    • United States
    • Kansas Supreme Court
    • 11 Junio 1892
  • State v. Eskildson
    • United States
    • New Mexico Supreme Court
    • 27 Junio 1932
    ...it will receive oral testimony in addition to affidavits. 46 C.J. 347; Burnham v. Grant, 24 Colo. App. 131, 134 P. 254; Gano v. Wells, 36 Kan. 688, 14 P. 251; City of Kansas City v. Bacon, 147 Mo. 259, 48 S.W. 860; Zander v. Fanslaw, 29 Ohio App. 259, 162 N.E. 745; Myers v. Cabiness, 44 Okl......
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