Gregg v. Berkshire

• Citation: 62 P. 550,10 Kan.App. 579
• Parties: GREGG et al. v. BERKSHIRE.
• Decision Date: 10 October 1900
• Court: Kansas Court of Appeals

62 P. 550

10 Kan.App. 579

GREGG et al. v. BERKSHIRE.

Court of Appeals of Kansas, Northern Department, Western Division

October 10, 1900

Error from district court, Johnson county; John T. Burris, Judge.

Action by J. H. Berkshire against E. B. Gregg and another. From a judgment for plaintiff, defendants bring error. Affirmed.

I. O Pickering, for plaintiffs in error.

John T. Little, for defendant in error.

OPINION

PER CURIAM.

This was an action in attachment commenced by J. H. Berkshire filing his bill of particulars, before a justice of the peace of the city of Olathe, Johnson county, as follows:

"Before S. T. Seaton, J. P., Olathe City, Johnson Co. Kansas.

"Spring Hill, Kansas, April 2, 1898.

E. B. Gregg & A. M. Clark to J. H. Berkshire, Dr.

To two tons praire hay, at $5.00 per ton

$ 10

To five hundred bushels corn, at 30 cts. per bushel

150

Total

$160

"Also four bushels & 20 lbs. over the above amount (on the last load), making 504.30 bush. corn, 1.25 additional."

"Spring Hill, Kansas, April 2, 1898.

"This certifies that I have received the above-mentioned hay and corn for A. M. Clark. D. M. Harter, [Duplicate.]"

"Spring Hill, Kansas, April 4th, 1898.

"Mr. A. M. Clark, Armourdale, Kansas: Your man. D. M. Harter, hauled the balance of the corn Saturday. Your bill now is as follows:

To five hundred and four-20 bushels corn, at 30 cts.

$151 25

To two tons prairie hay, at $5 per ton 110 00

Please remit

$161 25

"With 6% from March 22, 1898.

"Yours truly, J. J. Berkshire.

"John T. Little, Atty. for Piff."

A change of venue was taken, and a trial had in justice court, which resulted in a judgment unsatisfactory to plaintiff and the defendant Gregg, each of whom appealed. In the district court the defendant Gregg filed his motion that plaintiff be required to make his bill of particulars more definite and certain, in this: (1) That he state whether his demand against the defendants was joint or several; (2) that he state whether he prosecutes his action against the defendants as individuals or co-partners. He also filed his motion that he be allowed a separate trial. These motions were overruled. He then demurred to plaintiff’s bill of particulars, which was overruled. Thereafter he filed an answer consisting of a general denial. At the trial he objected to the introduction of any testimony, for the reason that the bill of particulars did not state a cause of action. The objection was overruled. The defendant Clark offered in writing to allow judgment to be taken against himself for the amount claimed, with interest and costs. A trial was had before the court and jury, resulting in a judgment against the defendants for $172.37, with costs of suit. The defendants, as plaintiffs in error, present the record to this court for review, and allege errors in the proceedings of the trial court. The questions presented by the record and assignments of error will be considered in their order.

1. The plaintiffs in error in their brief say: The only question in the court below and for determination here is as to the liability of Gregg; the only question at issue was whether Clark was or was not the agent of Gregg in the purchase of the corn and hay. The record seems to justify this position. The same particularity is not required in a bill of particulars as that required in a petition in the district court. The bill of particulars in the case under consideration might possibly have been made more definite and certain without injury to the plaintiff, yet there seems to be no just cause for criticism. The bill of particulars stated a cause of action against the defendants. The motion to make more definite and certain, the demurrer, and the objection to the introduction of evidence were properly overruled.

2. Section 268, Code Civ. Proc. (Gen. St. 1889), reads: "A separate trial between the plaintiff and any or all of the several defendants, may be allowed by the court, whenever justice will be thereby promoted." The allowance of a separate trial is wholly within the discretion of the trial court. Clark filed his written offer to permit judgment to be taken against him; he made no defense. It therefore appears that the defendant Gregg practically had a separate trial.

3. The alleged incompetent testimony introduced was a letter as follows: "Kansas City, Mo., 4-14-98. J. H. Berkshire Spring Hill, Kan.-Dear Sir: Would have written direct, but wrote Mr. Harter to tell you Mr. Gregg was out of town, and would be back Saturday, unless something prevented. If he comes in, we will be down. Anyway, if he does not come, I will write him, and be sure and be down and pay you for the corn and hay, which is all right, by a week from Saturday, without fail. Trusting this will be satisfactory. I remain, yours, truly, A. M. Clark, Agt." Clark was called as a witness for defendants. He testified that he was not the agent of Gregg in the purchase of the corn and hay, but acted independently for himself; bought the grain for speculation. After he had given this testimony, upon cross-examination the letter was identified and offered in evidence as tending to contradict the latter statement of the witness. We think that...