Smith v. Leighton

• Citation: 17 P. 52,38 Kan. 544
• Parties: ELIAS SMITH v. C. A. LEIGHTON
• Decision Date: 11 February 1888
• Court: United States State Supreme Court of Kansas

17 P. 52

38 Kan. 544

ELIAS SMITH v. C. A. LEIGHTON

Supreme Court of Kansas

February 11, 1888

Error from Lyon District Court.

THE opinion states the case.

Judgment affirmed.

W. A Randolph, for plaintiff in error.

Kellogg & Sedgwick, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This proceeding springs up for review a judgment rendered in an action brought by C. A. Leighton against Elias Smith to recover the value of certain grass which Smith cut and carried away from the premises of Leighton. On July 10, 1883, and for some time prior thereto, one V. Lillard owned a quarter-section of land in Lyon county, which on that day he sold and conveyed by warranty deed, without reservation, to C. A. Leighton. Before that time he had leased the land to Elias Smith for the year 1883, and Smith had sub-let it to A. Hill, who was in possession before the sale of the land, and in May, 1883, Lillard made a verbal sale of some grass growing on a certain meadow of the premises, for $ 65. About the last of July or the first of August, 1883, Smith cut and took the grass from the premises; and subsequently, when Leighton demanded compensation for the grass, Smith stated that he was ready to pay for the same as soon as he learned to whom payment should be made. Trial at the April term, 1886, when Leighton recovered $ 75.78, which is the amount Smith agreed to pay for the grass, together with 7 per cent. interest. The defendant brings the case to this court.

The first error assigned here is the admission in evidence of the record copy of the deed from Lillard to Leighton, conveying the premises upon which the grass grew. The original deed was admissible in testimony for the purpose of showing whether there had been any reservation made by Lillard when the land was conveyed. The copy of the deed was not the best evidence, and was not admissible unless a proper foundation was laid for the introduction of secondary evidence. Only a general objection, however, was made to the introduction of the copy. If the original deed was not in the possession or control of the plaintiff, the record copy could be introduced in evidence, and being admissible under certain circumstances, a general objection was not available for purposes of error. It has frequently been held "that where evidence is apparently admissible for any purpose, or under any circumstances, the court does not err in admitting the same, unless the reasons for its exclusion are given by the party objecting." (Ferguson v. Graves, 12 Kan. 39, 43; Botkin v. Livingston, 16 id. 41; Cross v. National Bank, 17 id. 336; K. P. Rly. Co. v. Cutter, 19 id. 83; Humphrey v. Collins, 23 id. 549.)

It is next contended that the court erred in excluding evidence offered by Smith, and also in directing the verdict in favor of Leighton. We think the result reached is substantially just and correct. Smith claimed the right to the grass by virtue of a parol agreement with Lillard, by which he was to pay $ 65 for the grass when cut; and also claimed that...