The First National Bank of Hays City v. Chittenden

• Decision Date: 12 December 1914
• Docket Number: 19,053
• Citation: 93 Kan. 464,144 P. 1019
• Parties: THE FIRST NATIONAL BANK OF HAYS CITY, Appellant, v. A. O. ROBINSON and H. W. CHITTENDEN, Appellees
• Court: Kansas Supreme Court

144 P. 1019

93 Kan. 464

THE FIRST NATIONAL BANK OF HAYS CITY, Appellant, v. A. O. ROBINSON and H. W. CHITTENDEN, Appellees

No. 19,053

Supreme Court of Kansas

December 12, 1914

Decided July, 1914.

Appeal from Ellis district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TITLE AND OWNERSHIP--Testimony of Owner as to Ownership--Conclusions. A party claiming title to a chose in action or other personal property which is the subject of litigation may properly be permitted to answer a question as to who is its owner, and if his adversary desires the constituent facts on which such claim of ownership is based he may elicit them on cross-examination.

2. SAME. The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions between facts and conclusions.

3. PROMISSORY NOTE--Indorsement--Verified Denial--Burden of Proof. A petition in the usual form by the indorsee of a negotiable note bearing the purported indorsement of the payee "By J. D. M., ag't." was answered by a verified denial that such note was not sold and delivered by the payee company or any one for it with authority so to do. Held, that the burden of proof was upon the plaintiff to establish authority in the agent to make the indorsement.

A. D. Gilkeson, of Hays, for the appellant.

OPINION

WEST, J.

The plaintiff bank sued upon a promissory note executed by the defendants to the Mid-Continent Loan Company, December 2, 1911, for $ 250 payable ninety days after date with six per cent interest, alleging that it purchased the note before maturity for value in the regular course of business, and that it was transferred by indorsement "Mid-Continent Loan Company by J. D. McInnes, Agt." The answer contained a general denial, and averred that the note was secured without consideration, and that the inducement for its execution was a false, fraudulent and untrue statement of the loan company by its agent that it would make loans in Ellis county and pay the defendants commissions thereon, and that the company was to issue stock to the defendants for the amount of the note, which was not done; that the defendants received no consideration; also a denial that the note was ever sold and delivered to the plaintiff by the loan company or any one for it with authority so to do. The answer was verified. The trial resulted in a judgment for the defendants, from which the plaintiff appeals.

Error is assigned upon the refusal of the court to permit the cashier of the bank to testify who was the owner of the note, and in refusing testimony offered by the president as to a conversation had with McInnis touching his authority as to when the note was purchased, also in admitting the testimony offered by the defense.

The jury were instructed that the burden was upon the plaintiff to show that it was the owner of the note for value before maturity; that it was duly indorsed to the plaintiff by the loan company or some one authorized thereby; and it is argued that if the plaintiff established the fact that the note was purchased for value before maturity in due course the question of indorsement is out of the case.

Complaint is also made of an instruction that as the defendants had by verified answer denied that the plaintiff was the legal owner or holder of the note it was necessary that plaintiff prove the indorsement of the original payee. It is suggested that a mere denial, without proof in support thereof, is insufficient to place this burden upon the plaintiff. The defendants have furnished no brief, and we are compelled to consider the case without the benefit of any suggestion from them.

The cashier was asked who was the holder of the note, and an objection on the ground that the question called for a conclusion of the witness was sustained. A similar ruling was made touching questions as to who was the owner and whether the note was a part of the assets of the plaintiff bank, but finally the latter question was permitted to be answered. The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions. While in a very strict sense it may be giving a conclusion for the owner to say that he is the owner of a chattel or chose in action, surely he ought to know, and if he is mistaken it may be shown on cross-examination. Almost any answer might, when dissected with the scalpel of precise mental philosophy, be deemed wholly or partly a conclusion. The first stock question usually is, "Where do you reside?" and the courts have not yet found that a reply giving the location indicates only the witness's conclusion as to his habitation, and yet no more perplexing question can arise than that of residence in some cases. In Simpson v. Smith &amp Barnes, 27 Kan. 565, the ownership of real and personal property was the main question, and a witness was permitted to testify that the plaintiffs were "the absolute owners." This was held error, but whether material error or not was left undecided. In Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 P. 730, a question was permitted to be asked as to whose employ the plaintiff was in at the time of the injury, and it was held that as the witness in addition to the direct answer narrated in detail all the facts and circumstances connected with his employment, the error was not material, and that if the question had been merely preliminary it would not have been erroneous. In Hite v. Stimmell, 45 Kan. 469, 25 P. 852, it was held incompetent for a witness to state that he thought the cattle in question belonged to another party, Simpson v. Smith & Barnes, supra, being quoted from and followed. In Sparks v. Bank, 68 Kan. 148, 74 P. 619, Hite v. Stimmell, supra, and Solomon Rld. Co. v. Jones, supra, were followed. In The State v. Rennaker, 75 Kan. 685, 90 P. 245, the question whether an answer that the witness had purchased intoxicating liquors from the defendant amounted to a conclusion was left undecided, and in McDonald v. Daniels, 76 Kan. 388, 92 P. 51, a direct statement by the witness that she owned property in controversy was held not to be prejudicial error, as it was followed by examination and cross-examination giving in detail the circumstances of her purchase and manner of acquiring the property. The supreme court of Alabama has twice held that ownership of personal property is a fact to which a witness may testify and may on cross-examination be required to state facts on which the claim of ownership rests. (Steiner Bros. & Co. v. Tranum, 98 Ala. 315, 13 So. 365; Hunnicutt v. Higginbotham, 138 Ala. 472, 35 So. 469, 100 Am. St. Rep. 45.) The supreme court of Iowa held that a statement by a witness that certain property in controversy belongs to him is not inadmissible as a conclusion since the question calls for a fact as well as an opinion. (Murphy v. Olberding, 107 Iowa 547, 78 N.W. 205, and cases cited.) In New York it has been repeatedly held that such a question is competent. In DeWolf v. Williams, 69 N.Y. 621, it was said that...