Myers v. Goggerty

• Decision Date: 01 January 1901
• Docket Number: 819
• Citation: 63 P. 296,10 Kan.App. 190
• Parties: JOHN D. MYERS, as Receiver of the State Bank of Circleville, v. J. C. GOGGERTY
• Court: Kansas Court of Appeals

63 P. 296

10 Kan.App. 190

JOHN D. MYERS, as Receiver of the State Bank of Circleville, v. J. C. GOGGERTY

No. 819

Court of Appeals of Kansas

January 1, 1901

Decided January, 1901.

Error from Jackson district court; MARSHALL GEPHART, judge.

Judgment affirmed.

SYLLABUS

PRACTICE District Court -- Offer to Compromise -- Evidence. An offer or negotiation to compromise should not be regarded as an admission of indebtedness, nor should such fact be used in evidence against the party offering to adjust the matters in dispute. One who makes an offer to compromise should not be prejudiced thereby in his right to insist upon any legal defense he may possess.

U. S. G. Mitchell, and John D. Myers, for plaintiff in error.

Hurrel & Graham, for defendant in error.

OPINION

MCELROY, J.:

This action was brought by John D. Myers, receiver of the State Bank of Circleville, against J. C. Goggerty, for the recovery of the amount alleged to be due on a promissory note executed by the defendant to the bank of which plaintiff was receiver. The petition contained the necessary and usual averments for a recovery upon the note. The defendant in his answer pleaded: (1) A general denial; (2) that he signed the note as an accommodation for the bank, without any consideration; and (3) that on or about the 6th day of July, 1899, Hoffhines, the cashier of the State Bank of Circleville, as such cashier made, executed and delivered to the defendant, J. C. Goggerty, on behalf of said bank, a receipt in full payment of said note, stating at the time that as soon as the note could be returned the same would be delivered to defendant.

The plaintiff, for a reply, filed a general denial. A trial was had before a jury, who returned a general verdict for the defendant. The jury also made certain special findings of fact. Plaintiff's motions for a new trial and for judgment upon the special findings were overruled, and judgment was rendered upon the verdict. John D. Myers, receiver, as plaintiff in error, presents the record to this court for review, and alleges error in the proceedings of the trial court: 1. That the court erred in striking out competent testimony. 2. That the court erred in overruling plaintiff's motion for a new trial.

1. The testimony, taken from the jury on motion of the defendant, showed that the defendant was willing to compromise rather than continue in litigation; that he was willing to part with some Oklahoma property in settlement of the claim set up by the receiver, and thereby purchase his peace. An offer or negotiation to compromise should not be regarded as an admission, nor should that fact be used in evidence against the party offering such adjustment. It appears that the defendant, after the suit was instituted, which was an action for the recovery of money only, offered to turn over the Oklahoma property in settlement of the demand made against him. This was in no wise an admission inconsistent with his contention that the note was executed without consideration, or with his plea of payment. One who makes an offer to compromise should not be prejudiced thereby in his right to insist upon any legal defense he may possess. (Latham v. Hartford, 27 Kan. 249.) The testimony concerning this negotiation for compromise was properly excluded.

2. But one other question is presented, and that is as to the action of the court in overruling the motion for a new trial. The note was given in settlement of an overdraft occasioned by the purchase of cattle. It was dated May 19, 1899, was for the sum of $ 300, and was due July 1...