Irwin v. Dole

Court of Appeals of Kansas

Irwin v. Dole

52 P. 916, 7 Kan. App. 84, 1898 Kan. App. LEXIS 285

CourtCourt of Appeals of Kansas

DecidedApril 8, 1898

DocketNo. 349

StatusPublished

Cited by3 cases

This text of 52 P. 916 (Irwin v. Dole) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Irwin v. Dole, 52 P. 916, 7 Kan. App. 84, 1898 Kan. App. LEXIS 285 (kanctapp 1898).

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Opinion

The opinion of the court was delivered by

Wells, J.:

The plaintiff in error contends that there was substantial evidence introduced tending to show, first, that the note sued on had been materially altered by a change of the date of payment from the 1st day of March, 1890, to the 1st day of March, 1892 ; second, that the note was not delivered to the payee, but was placed in escrow, taken therefrom without authority, and transferred to the holder. From the decision in the case of McCormick v. Holmes, 41 Kan. 265 (21 Pac. Rep. 108), the question of escrow seems to be immaterial, and the only question before us is, Was there evidence of the alteration of the note after its execution which should have been submitted to the jury? This is a close question. The evidence is against the claim ; and, had it been submitted to the jury, and had they found in favor of the claim, it would have been the imperative duty of the court to set aside the verdict. The instruction to the jury in this case is the same in principle as sustaining a demurrer to the evidence, and the supreme court has uniformly held that, where there is any evidence to support the contention, the question should be submitted to the jury.

In Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan. [86]*8616 (1 Pac. Rep. 610), the court says:. “A newtijal may be granted upon evidence that would not authorize the sustaining of a demurrer to the evidence.- And this is right, for a new trial gives the parties another opportunity to make out a good case; but a decision sustaining a demurrer tó the evidence is final.”

What is meant by “evidence,” “some evidence,” or “ any evidence,” such as entitles the party offering it to the verdict of the jury thereon? In the case -last cited, Valentine, J., says (p. 14) :

“ When we say some evidence, we do not mean that there was merely a bare scintilla of evidence, but we mean that there was an amount of evidence worthy of consideration, and an amount of evidence that would have entitled the plaintiff to a verdict in his favor if all the contradictory and conflicting evidence, should not be considered or should not be believed by the jury.”

' Under this rule, we do not’think there was any such evidence in this case as required the judgment of thd jury thereon.

The judgment of the court below will be affirmed. ‘

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The opinion of the court was delivered by

Wells, J.:

The plaintiff in error contends that there was substantial evidence introduced tending to show, first, that the note sued on had been materially altered by a change of the date of payment from the 1st day of March, 1890, to the 1st day of March, 1892 ; second, that the note was not delivered to the payee, but was placed in escrow, taken therefrom without authority, and transferred to the holder. From the decision in the case of McCormick v. Holmes, 41 Kan. 265 (21 Pac. Rep. 108), the question of escrow seems to be immaterial, and the only question before us is, Was there evidence of the alteration of the note after its execution which should have been submitted to the jury? This is a close question. The evidence is against the claim ; and, had it been submitted to the jury, and had they found in favor of the claim, it would have been the imperative duty of the court to set aside the verdict. The instruction to the jury in this case is the same in principle as sustaining a demurrer to the evidence, and the supreme court has uniformly held that, where there is any evidence to support the contention, the question should be submitted to the jury.

In Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan. [86]*8616 (1 Pac. Rep. 610), the court says:. “A newtijal may be granted upon evidence that would not authorize the sustaining of a demurrer to the evidence.- And this is right, for a new trial gives the parties another opportunity to make out a good case; but a decision sustaining a demurrer tó the evidence is final.”

What is meant by “evidence,” “some evidence,” or “ any evidence,” such as entitles the party offering it to the verdict of the jury thereon? In the case -last cited, Valentine, J., says (p. 14) :

“ When we say some evidence, we do not mean that there was merely a bare scintilla of evidence, but we mean that there was an amount of evidence worthy of consideration, and an amount of evidence that would have entitled the plaintiff to a verdict in his favor if all the contradictory and conflicting evidence, should not be considered or should not be believed by the jury.”

' Under this rule, we do not’think there was any such evidence in this case as required the judgment of thd jury thereon.

The judgment of the court below will be affirmed. ‘

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52 P. 916, 7 Kan. App. 84, 1898 Kan. App. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irwin-v-dole-kanctapp-1898.

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