Hurlbut v. Jenkins
| Decision Date | 14 June 1886 |
| Citation | 22 Mo.App. 572 |
| Parties | MINNIE HURLBUT AND HUSBAND, Respondents, v. J. W. JENKINS, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.
Affirmed.
The case and facts are stated in the opinion of the court.
RIEGER & BUCKNER, for the appellant.
I. The question presented for determination is a mixed one of law and fact. The burden of proving a sale is upon the party alleging it; and the fact of sale is to be determined by what passed between the contracting parties, at the time and place said alleged sale was made, if made at all.
II. Outside of the testimony of Mrs. Mara, there is no evidence to authorize a verdict, and even taking her testimony, as a whole, marked and tainted with perjury, as it is, together with the facts and circumstances in the case, a sale, in the legal acceptation of the term, is not proven.
III. Should the court think the evidence, as offered and received sufficient to support a verdict, it should reverse and remand for the error committed in refusing to grant a new trial to defendant. The motion, among other things charges perjury committed by Mrs. Mara, and the motion is supported by five affidavits, which utterly discredit her. The statute is mandatory if perjury has been committed. Section 3704 Revised Statutes.
BRYANT & HOLMES, for the respondents.
I. The instructions asked by defendant were properly refused. They present no question of law; but, in effect, amount to a demurrer to plaintiffs' evidence. The court, sitting as a jury, found, that the evidence preponderated in favor of plaintiffs. This court will not review the finding of the circuit court on a pure question of fact.
II. Section 3704, Revised Statutes, does not aid the defendant. The subject-matter of the affidavits accompanying the motion for a new trial was covered by the testimony of defendant's witnesses on the trial. And even if the court had been satisfied that perjury or mistake had been committed by the witness Mara (which the court's ruling shows it was not satisfied of), the court must also have been satisfied that an improper verdict or finding was occasioned thereby, and that the party has just defence. The statute addresses itself peculiarly to the sound discretion of the trial court.
III. The judgment ought to be affirmed with damages.
This is an action of conversion. The question involved is principally one of fact. The plaintiff's evidence tended to show that on the sixteenth day of October, 1884, one Mrs. C. W. Mara who, so far as shown by this record, was a feme sole, applied to plaintiff for the loan of seventy-five dollars, offering as security therefor a mortgage on the piano in controversy. The money was then loaned, and a chattel mortgage was duly executed, acknowledged, delivered and recorded, conveying this piano from Mrs. Mara to plaintiff. The piano was then in the possession of Mrs. Mara. The defendant shortly afterwards went to the house of Mrs. Mara, in her absence, and carried the piano away, claiming that he was the owner thereof.
The defendant's evidence tended to show that on or about the day of October, just prior to the execution of chattel mortgage, he was the owner of the piano, and that a woman calling herself Mrs. Fisher came to his store in Kansas City and represented that she wished to buy a piano as a birthday present to her daughter; that as it was not known that the piano she wanted or looked at would be satisfactory to the daughter, and as the applicant did not propose to pay the money down on the proposed purchase, it was merely agreed that defendant would send the piano to her residence that evening for the occasion of the daughter's birthday party, as a loan, and that next day she was to call at the store and make other selection, if she desired, and arrange for the completion of the proposed sale. That the piano was so sent...
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