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For the purpose of showing that the contract set up and relied upon by the plaintiff had not been made, it was competent for the defendant, under his general denial, to offer testimony that two days after the alleged sale the plaintiff contracted to purchase the same corn, and on different terms than those claimed by the plaintiff.


In such a case, where testimony is offered that the defendant had admitted, in general terms, the selling of his corn to the plaintiff, the defendant is entitled to show and explain that in such admission he had reference to a contract of sale other than the one upon which the plaintiff relies.

Error from Sedgwick county.

Ruggles & Parsons, for plaintiff in error.

Sluss & Hatton, for defendant in error.

JOHNSTON, J. L. M. McCrocklin, who is the defendant in error, brought an action in the district court of Sedgwick county against Nelson Davis, who is the plaintiff in error here, alleging that on the eighth day of August, 1881, the defendant, Nelson Davis, and the plaintiff entered into a verbal agreement, whereby it was agreed that the defendant should sell to the plaintiff 2,000 bushels of shelled corn which should be delivered to the plaintiff upon the cars on the twentieth day of August, 1881, and for which the plaintiff should pay, upon delivery, 35 cents per bushel. He alleged a demand of the corn and a failure of the defendant to deliver the same, and further alleged that he had been damaged in the sum of $500, for which he prayed judgment. The answer of Davis was a general denial. The plaintiff below obtained a verdict and judgment for $150, and the defendant brings the case here and assigns for error the rulings of the court upon the admission of evidence.

In his testimony, McCrocklin stated that on the eighth day of August, 1881, he went to Davis' place for the purpose of buying his corn; that Davis priced his corn to him at 35 cents per bushel; and after some talk about the matter, McCrocklin said he wanted to inquire into the condition of the market, and that he would determine and notify Davis at noon, sharp, of that day whether or not he would take the corn at the price asked; that he immediately communicated with persons at Kansas City relative to the price of corn, and then sent James Dean, who was in his employ, to notify Davis that he would accept his corn at the offer which he had made.

The plaintiff below then introduced Mr. Dean as a witness, who testified that under the direction of McCrocklin he went to Davis' place at noon on the eighth day of August, sharp, and notified him that McCrocklin would take the corn on the terms which Davis had proposed. On cross-examination this witness was asked if he did not go to Davis on Wednesday, the tenth day of August, and, as the agent of McCrocklin, propose to purchase the same corn and on different terms than those in the alleged contract of which McCrocklin had testified. This was objected to on the ground that, under the state of the pleadings, it would be incompetent for the defendant to introduce

any evidence relating to a subsequent contract. The court sustained the objection, and the defendant excepted.

The plaintiff produced several witnesses who were neighbors of the defendant, and who testified in general terms that the defendant admitted having sold his corn to McCrocklin. When it came to the introduction of testimony for the defense, Davis admitted that he had offered to sell the corn on August 8th upon the terms stated by the plaintiff, and also that McCrocklin was to notify him at noon sharp of that day whether the offer would be accepted. But he says that no notice of acceptance was given him upon that day by James Dean or any one else for the plaintiff. He was then asked if he did not say to his neighbors, who were witnesses, that he had sold his corn to the plaintiff, and he answered that their testimony upon that point was mostly true, and was proceeding to state that he was speaking of another transaction, and to explain under what circumstances he made the admissions, when the plaintiff interposed an objection that the explanation of the witness was that he had reference to a contract other than the one alleged by the plaintiff. The explanation that the defendant desired to make was that, in the statements made to his neighbors that he had sold his corn to McCrocklin, he did not refer to negotiations between them on the eighth of August, but to a sale which he claimed was made on a subsequent day, by the terms of which the defendant was to sell his corn to the plaintiff for 35 cents a bushel, the plaintiff to furnish a sheller to shell the same, and if the plaintiff failed to do so he was not to have the corn. The court sustained the objection and the plaintiff excepted.

It seems to us that in both instances the testimony was improperly excluded. The court ruled that it was inadmissible under a general denial, holding that the defendant could not introduce any testimony tending to show any other negotiations or contract between the parties than the one alleged by the plaintiff. It is to be noticed that the defendant does not admit the completion of the contract which was under negotiation between himself and the plaintiff. By his general denial, the sale of the corn on August 8, 1881, as alleged by the plaintiff, was put in issue. To maintain his action it was incumbent on the plaintiff to prove that the sale was consummated by an acceptance of the defendant's offer as early as noon of that day. Under the general denial the defendant may properly offer any testimony which goes to controvert the facts that the plaintiff was bound to establish in order to maintain his action. This was the purpose for which the testimony excluded was offered. The defendant did not seek to establish a subsequent contract as a basis of recovery against the plaintiff; neither did he offer it to show a modification of an existing contract. He denied that the contract set up by the plaintiff was ever made, and the testimony objected to was in part inconsistent with, and some of it went directly to controvert, the claim of the plaintiff. The witness Dean had testified that before

noon of the 8th he came to Davis on behalf of the plaintiff McCrocklin, his employer, and accepted the corn and completed the contract. As tending to contradict this statement, and to show that the offer was not then accepted, the defendant sought to prove that Dean came two days thereafter, and that he proposed to and did purchase the same corn for the plaintiff and for a greater price than was talked about between the parties on the eighth of August. This conduct implied, with more or less force, that there had been no prior purchase of the corn by the plaintiff, and the testimony tended strongly to disprove the claim and testimony of the plaintiff.

Again, the defendant should have been allowed to explain the partial statements or admissions made by him to his neighbors, who testified that he admitted having sold his corn to the plaintiff. According to their testimony the admissions were in general terms, and simply that he had sold his corn to the plaintiff without stating at what time the sale was made. They were offered to support the making of the contract alleged by the plaintiff, while the defendant claims that he had reference to an entirely different transaction. A party is always allowed to show what the complete admission was, and he may even show the admission to be erroneous or untrue, unless the other party may have been led by such admission to alter his condition, when he would be estopped from denying it. The admissions in this transaction were made to outside parties, were not acted upon by the plaintiff, and were not of such a character as to constitute an estoppel. He was entitled to lay before the jury a full statement of the admissions, the circumstances under which they were made, and to explain the particular sale to which he referred in the statements that he had sold his corn to the plaintiff.

For improperly excluding testimony offered by the defendant, the judgment must be reversed and the cause remanded for a new trial. (All the justices concurring.)

(34 Kan. 108)

SCHERMERHORN, Sr., v. MAHAFFIE and others.

SCHERMERHORN and others v. WILLIAMS and others.

Filed October 9, 1885.


A deed executed on July 15, 1858, by the husband alone, for a quarter section of land occupied by himself and his wife and family as their homestead, is void.


Where an owner of real estate died in 1863, one-half of such real estate passed to his widow, and the other half to his children, equally; and where the widow was afterwards married, and afterwards, on March 11, 1882, died, onehalf of her interest in such real estate passed to her husband, and the other half descended to her children, equally.


Where a decree is rendered by consent of all the parties, it is not void, as between the parties, because some other person not made a party should have been made a party; nor void because it did not give to the parties just what the petition of the plaintiff stated should be given to each of them, and what ought to have been given to each of them; nor void because it embraced causes of action which should not have been joined; nor void for fraud as against a party who was not guilty of committing any fraud, and who did not get by the decree as much as he was entitled to; nor void as against an innocent party because some of the parties were minors and their guardian ad litem was an attorney for still another party who had an antagonistic interest.

Error from Johnson county.

E. B. Gill and J. W. Parker, for plaintiff in error.
A. Smith Devenney, for defendants in error.

VALENTINE, J. On or about March 1, 1857, Oscar F. Williams and Sarah Williams, his wife, with their family, settled upon the N. W. of section 24, township 13, range 22, in Johnson county, Kansas; said quarter section of land contained 160 acres, and belonged to the government of the United States. Williams and his wife re

sided upon this land as long as they lived. On April 19, 1856, Williams purchased the land from the government of the United States and received a certificate of purchase therefor. On July 15, 1858, Williams, for the consideration of $750, executed his individual warranty deed for the land to William Peacock, of Jackson county, Missouri. His wife deed not sign the deed or join in its execution. On July 20, 1858, Peacock, for the expressed consideration of one dollar, executed a warranty deed for the land to Mrs. Williams. On July 23, 1858, the foregoing deeds were recorded. On June 1, 1860, a patent for the land was issued by the government of the United States to Williams. On April 13, 1868, Jane White, who owned the S. E. of the N. E. of section 18, township 13, range 23, in Johnson county, Kansas, it being 40 acres, conveyed the same by warranty deed to Williams. Late in the fall of 1863 Williams died intestate, leaving as his heirs a widow, said Sarah Williams, and three children, Mary F. Williams, who was subsequently married to George B. Mahaffie, and became Mary F. Mahaffie, William O. Williams, and Rosa Lee Williams. In January, 1866, Mrs. Williams was married to Theodore Schermerhorn, and from that time forward is known as Sallie P. Schermerhorn. Schermerhorn then removed onto said quarter section of land, and has resided thereon with his family up to the present time. On October 23, 1878, tax deeds for the taxes of 1874, 1875, 1876, and 1877 were issued by the county clerk of Johnson county to Schermerhorn for all the foregoing land. On October 25, 1878, these tax deeds were recorded. On October 29, 1881, Mrs. Mahaffie and her husband, George B. Mahaffie, conveyed by quitclaim deed all their interest in all the foregoing land to William O. Williams. On November 28, 1881, Rosa Lee Williams and William O. Williams commenced an action in the district court of Johnson county against their mother, Mrs. Schermerhorn, and her hus

band, Theodore Schermerhorn, for an accounting and to set aside said tax deeds and for rents and profits, and for a partition of all the foregoing lands. On December 28, 1881, the defendants answered. On March 11, 1882, Mrs. Schermerhorn died intestate, leaving as her heirs the said Williams children, her husband, Theodore Schermerhorn, and three children by Schermerhorn, born since her marriage to Schermerhorn, to-wit: Cornelia Schermerhorn, Theodore Schermerhorn, and Elma Schermerhorn. On March 31, 1882, the Schermerhorn children were made parties to the action, and the plaintiffs' petition was amended accordingly. On June 5, 1882, a guardian ad litem was appointed for the Schermerhorn children, who were minors. On June 27, 1882, the guardian ad litem answered for the Schermerhorn children by filing a general denial, and on the same day a decree, by consent of all the parties, was rendered by the court partitioning the property between them, giving the S. of each tract of land to the Williams children, and the N. of each tract of land to Schermerhorn. And on the same day Schermerhorn, by a quitclaim deed, conveyed the S. of each of said tracts of land to the Williams children, and the Williams children, including Mrs. Mahaffie, conveyed, by a quitclaim deed, the N. of each of said tracts of land to Schermerhorn. On January 4, 1883, Schermerhorn, in the name of his children, by their next friend, J. H. Kirby, brought this present action against the Williams children and himself to set aside said consent decree and for partition of all the foregoing real estate. On January 8, 1883, Schermerhorn filed an application in the probate court of Johnson county against the Williams children and his own children, asking for an allotment to him of his interest in the foregoing real estate. On January 16, 1883, the Williams children filed their separate answer to the petition in the district court. On February 2, 1883, the probate court allotted a certain portion of said real estate to Schermerhorn. On February 3, 1883, the Williams children took an appeal from this allotment by the probate court to the district court, and on the same day the Schermerhorn children filed a reply, a general denial, in this present action to the answer of the Williams children in the district court. On February 8, 1883, Schermerhorn filed a separate answer in the action commenced in the district court. On March 22, 1884, both the action commenced in the district court and the proceeding for allotment commenced in the probate court, and appealed to the district court, came on for trial before the district court, and both cases were heard and tried together before the court without a jury. On April 2, 1884, the court decided both these cases, making findings and rendering judgment thereon. The judgment in each case was in favor of the Williams children and against Schermerhorn and his children. Motions were made for a new trial in the action commenced in the district court, but not in the other. We suppose these motions were made in proper time, though the record hardly shows it. The court

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