Irwin v. Dole

• Decision Date: 01 March 1898
• Docket Number: 349
• Citation: 7 Kan.App. 84,52 P. 916
• Parties: MILLER R. IRWIN v. ARTHUR W. DOLE
• Court: Kansas Court of Appeals

52 P. 916

7 Kan.App. 84

MILLER R. IRWIN v. ARTHUR W. DOLE

No. 349

Court of Appeals of Kansas, Northern Department, Eastern Division

March 1, 1898

Opinion Filed April 8, 1898.

Error from Brown district court; J. F. THOMPSON, judge. Affirmed.

The defendant in error, as plaintiff below, brought an action in the district court of Brown county upon a promissory note executed by the plaintiff in error, payable to the order of Louis E. Parker, and indorsed by him to Arthur W. Dole, the defendant in error. The case was tried to a jury. The court instructed the jury to return a verdict for the plaintiff which was done.

Judgment affirmed.

Robert T. Herrick, for plaintiff in error.

James Falloon, for defendant in error.

OPINION

WELLS, J.:

The plaintiff in error contends that there was substantial evidence introduced tending to show, first, that the note sued on had been materially altered by a change of the date of payment from the 1st day of March, 1890, to the 1st day of March, 1892; second, that the note was not delivered to the payee, but was placed in escrow, taken therefrom without authority, and transferred to the holder. From the decision in the case of McCormick v Holmes, 41 Kan. 265 (21 P. 108), the question of escrow seems to be immaterial, and the only question before us is Was there evidence of the alteration of the note after its execution which should have been submitted to the jury? This is a close question. The evidence is against the claim; and, had it been submitted to the jury, and had they found in favor of the claim, it would have been the imperative duty of the court to set aside the verdict. The instruction to the jury in this case is the same in principle as sustaining a demurrer to the evidence, and the supreme court has uniformly held that, where there is any evidence to support the contention, the question should be submitted to the jury.

In Brown, Adm'r, v. A. T. & S. F. Rld. Co., 31 Kan. 1 (1 P. 605), the court says: "A new trial may be granted upon evidence that would not authorize the sustaining of a demurrer to the evidence. And this is right, for a new trial gives the parties another opportunity to make out a good case; but a decision sustaining a demurrer to the evidence is final."

What is meant by "evidence," "some evidence," or "any evidence," such as entitles the party offering it to the verdict of the jury thereon? In the case last cited, VALENTINE, J.,...