Hallam v. Huffman

• Decision Date: 22 March 1897
• Docket Number: 131
• Citation: 48 P. 602,5 Kan.App. 303
• Parties: I. S. HALLAM v. G. G. HUFFMAN
• Court: Kansas Court of Appeals

48 P. 602

5 Kan.App. 303

I. S. HALLAM v. G. G. HUFFMAN

No. 131

Court of Appeals of Kansas, Northern Department, Central Division

March 22, 1897

March 22, 1897.

Error from Dickinson District Court. Hon. James Humphrey, Judge. Reversed.

Judgment reversed.

J. H Mahan, for plaintiff in error.

Stambaugh & Hurd, for defendant in error.

WELLS J. McElroy, J., concurring. Mahan, P. J., having been of counsel, not sitting.

OPINION

WELLS, J.

I. S Hallam, David Matteson, G. C. Huffman, and J. P. Morley entered into an arrangement to prevent competition at a sheriff's sale of real estate, under which David Matteson, was to bid off the land at a price not to exceed four thousand dollars. It was then to be decided by chance which of the four should have the land at the four thousand dollars, and the difference between the price it was bid in for and the four thousand dollars was to be equally divided among the four. Matteson bid in the land for $ 3,510. The parties then met and drew lots for the land, and it fell to Hallam, the plaintiff in error. Before separating, Huffman, the defendant in error, plaintiff below, proposed that he would take the land at forty-two hundred dollars, which Hallam, under the advice of Matteson, with whom it developed at this point he had pooled his issues, accepted. Hallam then paid by check $ 567.50, that sum being the difference between the amount for which the land was bid off and forty-two hundred dollars, the sum at which Hallam had agreed to take it, less $ 122.50, Huffman's one-fourth of the profits under the original contract. This sum was immediately divided up, Hallam and Matteson each receiving $ 122.50 in addition to the two hundred dollars bonus paid by Huffman, and Morley getting $ 122.50, one-fourth of the $ 490.

The sale was set aside on account of the illegal combination. Hallam and Matteson refunded to Huffman their profits in the transaction, $ 445, but Morley refused to refund his $ 122.50. Thereafter this action was brought by Huffman, in the District Court of Dickinson County, Kansas, he claiming in his petition that he had made an oral agreement with said defendant, Hallam, for the purchase of certain real estate, and had paid as part consideration therefor $ 567.50; that the defendant being unable to make a title thereto rescinded said sale and had paid back all of said $ 567.50 except the sum of $ 122.50, and praying judgment for said last mentioned sum, with interest and costs.

To this petition the defendant answered, first, by a general denial, and second, by a recital of the facts substantially as hereinbefore set forth. The plaintiff replied by generally denying all the allegations and averments set up in said second count of defendant's answer. Trial was had to the court at its February term, 1895, and it found the issues for the plaintiff. A motion for a new trial was duly made, overruled, exceptions saved, and the case brought to this court for review.

We are first met by an objection interposed by the defendant in error, to a review of the alleged errors in this action, for the reason that the record does not affirmatively show that a motion for a new trial was filed within three days after the judgment of the trial court was rendered, and for that reason it must be presumed that the motion for a new trial was overruled because it was not filed in time, and that all errors occurring during the trial were waived. The record shows that the trial of this case was commenced on the thirteenth day of February, 1895; that upon the close of the testimony the court found the...