Middlekauff v. Zigler ex rel. Zigler

Court of Appeals of Kansas

Middlekauff v. Zigler ex rel. Zigler

62 P. 729, 10 Kan. App. 274, 1900 Kan. App. LEXIS 131

CourtCourt of Appeals of Kansas

DecidedOctober 27, 1900

DocketNo. 431

StatusPublished

This text of 62 P. 729 (Middlekauff v. Zigler ex rel. Zigler) 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

Middlekauff v. Zigler ex rel. Zigler, 62 P. 729, 10 Kan. App. 274, 1900 Kan. App. LEXIS 131 (kanctapp 1900).

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Opinion

[276]*276The opinion of the court was delivered by

Mahan, P. J.:

Instruction a, as requested by the defendant, was given in substance, with a modification to the effect that the plaintiff could not recover upon such conditional contract unless the defendant had waived the condition as to the time of sale. It is argued by counsel that this was error, because there was no such issue presented. It was due from the defendant, if he relied upon such condition, to plead the same. This he did not do, but was permitted by the court to offer proof to sustain the claim therefor made by him during the trial. He cannot now complain that the court gave an instruction fitted to the occasion which he created. Counsel say no such question was presented either in the pleadings or the evidence. In this they are mistaken.

The instruction marked b was immaterial. It matters not that negotiations were initiated through others who claimed no commission, if such negotiations were taken up by the plaintiff with the knowledge and consent of the defendant, and through his efforts resulted in a sale. The court told the jury that the plaintiff could not recover unless he proved by a preponderance of the evidence that his efforts were the efficient and procuring cause which produced the sale.

The proposed instruction b would have tended to mislead the jury. It was shown that one James Ryan and another, A. J. Harlan, first informed the buyer of the fact that the cattle‘were for sale, and advised him to see them and to say they claimed no commission if he bought them. He looked at them, was told the price, and declined to buy. Then the plaintiff intervened and through his efforts a sale was [277]*277made. This latter is uncontradicted. Now it made no difference that Ryan and Harlan were instrumental in inducing the first negotiation, which came to naught.

We have not examined instructions 5, 6, and 7, alluded to in the third assignment, for the reason that counsel have not complied with the rules of this court in relation thereto. These matters which we have noticed are the only grounds discussed in the brief; hence we cannot say that the court erred in denying the motion for a new trial.

The judgment is affirmed.

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[276]*276The opinion of the court was delivered by

Mahan, P. J.:

Instruction a, as requested by the defendant, was given in substance, with a modification to the effect that the plaintiff could not recover upon such conditional contract unless the defendant had waived the condition as to the time of sale. It is argued by counsel that this was error, because there was no such issue presented. It was due from the defendant, if he relied upon such condition, to plead the same. This he did not do, but was permitted by the court to offer proof to sustain the claim therefor made by him during the trial. He cannot now complain that the court gave an instruction fitted to the occasion which he created. Counsel say no such question was presented either in the pleadings or the evidence. In this they are mistaken.

The instruction marked b was immaterial. It matters not that negotiations were initiated through others who claimed no commission, if such negotiations were taken up by the plaintiff with the knowledge and consent of the defendant, and through his efforts resulted in a sale. The court told the jury that the plaintiff could not recover unless he proved by a preponderance of the evidence that his efforts were the efficient and procuring cause which produced the sale.

The proposed instruction b would have tended to mislead the jury. It was shown that one James Ryan and another, A. J. Harlan, first informed the buyer of the fact that the cattle‘were for sale, and advised him to see them and to say they claimed no commission if he bought them. He looked at them, was told the price, and declined to buy. Then the plaintiff intervened and through his efforts a sale was [277]*277made. This latter is uncontradicted. Now it made no difference that Ryan and Harlan were instrumental in inducing the first negotiation, which came to naught.

We have not examined instructions 5, 6, and 7, alluded to in the third assignment, for the reason that counsel have not complied with the rules of this court in relation thereto. These matters which we have noticed are the only grounds discussed in the brief; hence we cannot say that the court erred in denying the motion for a new trial.

The judgment is affirmed.

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62 P. 729, 10 Kan. App. 274, 1900 Kan. App. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/middlekauff-v-zigler-ex-rel-zigler-kanctapp-1900.