Bellport v. Harkins , 107 Kan. 454 ( 1920 )

The opinion of the court was delivered by

West, J.:

After this cause was remanded (Bellport v. Harkins, 104 Kan. 543, 180 Pac. 220) another trial was had resulting in a verdict for the plaintiff, and the defendants appeal and complain of the court’s refusal to sustain an objection to the introduction of evidence under the petition, of the overruling of the demurrer to the plaintiff’s evidence, and of the admission of certain testimony; also that certain instructions -were erroneous, and that it was error to send the jury back for a second verdict instead of receiving the one they first brought in.

The first assignment was disposed of in the former opinion.

The second one is without merit.

As to the third, the defendants, in order to show that the plaintiff did not suffer the amount of damages he claimed, offered in evidence the pleadings, journal entry and judgment in the foreclosure and quiet-title suit brought against him by the man in whose name the title to the land involved herein stood when the acknowledgment in question was made, also the summons and return in the same action. This was for the purpose of supporting the defendants’ theory and assertion that this action by Shirk involved the same land affected by the certificate of acknowledgment now under consideration, and that the plaintiff received back all he paid for the deed from Barndt except $449.50. It is asserted and not disputed that the verdict first returned by the jury was for this precise sum with interest.

The plaintiff’s allegation was that he sold the land for $1,200, paid $12.80 for taxes, and had had judgment rendered against him for $1,236.00 and costs, and that his total damage was $1,362.80. It is contended that this offer of evidence was an attempt to bring in an issue outside the pleadings, but the answer contained a general denial, and for this reason if the excluded testimony tended to show that the plaintiff’s damage had been much less than $1,362.80 it was competent. Of course, the plaintiff could not call on the defendants, to remunerate him for what he might reasonably have avoided by looking out for himself. (Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579; Murrell v. Crawford, 102 Kan. 118, 169 Pac. 561; Insurance Co. v. Bigger, 105 Kan. 311, 182 Pac. 184; Rock v. Vandine, 106 Kan. 588, 189 Pac. 157.)

It is suggested that because this evidence was not produced on the motion for a new trial, it cannot be considered now. The trial court knew what it was when offered as well as if offered again on motion for a new trial, and hence this objection must fail. (Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268; Bank v. Seaunier, 104 Kan. 7, 8, 178 Pac. 239.)

Considerable fault is found with the instructions, but they appear to have followed the rule announced in the former decision, and to have correctly stated the grounds on which the notary could be held liable.

Much force seems to have been given to the idea that Amandus H. Barndt did not appear before the notary. It seems that some one claiming, that name did appear, but he was not the Amandus H. Barndt who owned the land. True, the court did tell the jury that the plaintiff claimed the man who executed the deed was not Amandus H. Barndt, but they were also told that if the person who appeared before the notary was in fact Amandus H. Barndt the verdict would have to be for the defendants, even though he was not the owner of the land. This very liberal charge certainly cured any error which might otherwise have arisen from the quoted language touching the claim of the plaintiff in his petition.

The jury first returned a verdict for the plaintiff for $561.08, which the trial court refused to receive, telling the jury that—

“By this verdict you have indicated that you have found the issties in favor of the plaintiff 'and that the plaintiff is entitled to recover. This being so, he is entitled to recover the full amount of damages sustained and proved. The defendant has introduced no evidence to controvert the plaintiff’s testimony as to the amount of damages which the plaintiff has sustained. The jury should not ignore undisputed evidence in the case, if it is not discredited, and form independent conclusions on matter about which there is testimony in the case. Unless thelre is something in the evidence in the case to discredit the testimony of plaintiff’s witnesses as to the amount of damages which the plaintiff has sustained, their testimony on this question should be accepted.”

They were told that the court did not intimate, for which party the verdict should be found, but if they should find for the plaintiff it should be for all the damages the evidence showed he had sustained. After retirement and further consideration, they came in with a verdict for $1,663.28 against the defendant Harkins, and $1,221.17 against the surety company.

The court was eminently correct in advising the jury that it was not in their province to disregard credible and undisputed evidence. (Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322, and cases cited; Wible v. Street Railway Co., 88 Kan. 55, 127 Pac. 625; 10 R. C. L. 1006, § 194; Note, 12 Ann. Cas. 245; Miller’s Will, 49 Ore. 452; Roseberry v. Nixon, 58 Hun [N. Y.] 121; Kelly v. Burroughs, 102 N. Y. 93), but this makes more important the refusal of the court to admit the offered evidence of the amount of damages really suffered by the plaintiff. But for this there would be nothing between the colloquy of the jury and the sending of them back for further consideration, to warrant a reversal, because, as the court said, there was no testimony to dispute the plaintiff’s testimony as to the amount of his loss. There is no proper theory or principle by which it is any more competent for a jury to return too small a verdict than one too large, when in either case the one returned ignores credible and undisputed evidence.

Complaint is made that, while the plaintiff testified that his equity in the Wichita lots was worth $750, which was followed by the jury, his petition fixed the value at only $700. We find no way of ascertaining from the record whether the verdict finally returned included $750 for this item or not, but if any error in this respect occurred it can be corrected on another trial.

On account of the refusal of the offered testimony touching the foreclosure and quiet-title suit, the judgment is reversed.

No error appearing except in relation to the amount of damages suffered by the plaintiff, the cause is remanded for a new trial on that one question only.