Stark v. Cummings , 5 Kan. 85 ( 1869 )

By the Court,

Kingman, C. J.

Plaintiff and defendant were partners in printing and publishing a newspaper in Topeka, the partnership commencing about the 9th of January, 1864, and ending the 27 of March, 1864? at which time there was a dissolution of the partnership, and a final adjustment and settlement of the partnership affairs. This action is brought to recover $550 which the defendant in error alleges, was received by the plaintiff in error on the partnership account, and which he neglected to note on the books, or to give notice of to the defendant in error, who was the plaintiff below. The answer set up: First, a full settlement of the partnership business without any mistake. Second, denies that defendant received any such sum on the partnership account. Third, denies that defendant received any sum on the partnership account not accounted for on the settlement. The real controversy in the case turned upon the question whether $500, received by defendant below, was received on partnership account, or as the special property of defendant. Much improper evidence was admitted against objection and afterwards ruled out, so that it cuts no figure here but to encumber the record. To sustain his claim, among much other testimony, the plaintiff'below testified that in June, 1864, in a conversation with Thomas Carney, he (Carney) told the witness that “ he had handed Stark $500 ‘for the benefit of the office,’ and asked Cummings if he ‘was not satisfied with it.’ This was the first time that I knew that the money was intended for Cummings & Stark. To which testimony the defendant objected on the ground that ‘ statements of Carney were inadmissible, being hearsay testimony.’ The court overruled the objection, and allowed the evidence to go the jury, to which ruling of the court, the defendant at the time excepted.” We have copied the record above literally, as several questions are raised upon it.

It is conceded by counsel for defendant in error that ordinarily, this evidence would be incompetent, but it is insisted that under the circumstances, it is a part of the transaction. . The authorities cited do not sustain any such doctrine. Declarations made, when they accompany some act, the nature and object, or motions of which are the subject of inquiry, are receivable, because they afford the best means of ascertaining the character of such acts as admit of explanation. 1 Phillips on JEo. 194. These declarations of Carney, purporting to have been made in Juno, form no part of the transaction which took place in March preceding, and make the testimony clearly hearsay, and inadmissible. But it is claimed that the objection was not made at the proper time, that it should have been made before the evidence went to the jury. The record shows, as quoted above, that the objection was made at the proper time, and that the court overruled the objection, and allowed the evidence to go to the jury. It could «hardly be made plainer by language.

Again, it is claimed that the objection made was.too general to be available. Now, technically, it may be perceived that the objection was made to the whole of the testimony, but we feel sure, that tbe court below, as well as this court, must have been aware that all that was objected to was that part relating to the information received from Carney, and the reason of the objection itself being given, is conclusive that' to that part of the testimony only was the objection urged, and that testimony being hearsay, and not part of the transaction itself, was on well known principles clearly inadmissible. It was one of the great matters in controversy, whether the money was given to Stark on his own individual account, or on the partnership account, and this testimony tended strongly to support the claim of Cummings. For this error the judgment must be reversed, arid a new trial awarded.

Valentine, J., concurring. Saeeord, J., not setting in this case.