Bartholomew v. Fell

Citations

• 92 Kan. 64
• 139 P. 1016
• 1914 Kan. LEXIS 167

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Order — To Pay Money — Accepted—Delivery Denied —Burden of Proof. Action was brought on the following instrument :</p> <p>“Latham, Kansas, December 31,1910.</p> <p>Mr. W. W. Fell, please pay to C. H. Bartholomew ($250.00) Two Hundred and fifty Dollars and oblige. C. A. Bing,”</p> <p>“I except order. W. W. Fell.”</p> <p>The answer admitted the execution and acceptance of the order and that plaintiff had it in his possession, but denied that it was ever delivered, and alleged that it was executed and intended to be delivered upon certain conditions, which never happened, and that plaintiff wrongfully obtained possession of it. Held, that in the state of the pleadings the burden was upon the defendant to prove that plaintiff’s possession of the instrument was wrongfully acquired, and therefore the court properly ruled that defendant had the right to open and close.</p> <p>2. Same — Instructions—Assumption by Court of Prerogative of Jury. In the case stated it was error for the court to charge that the right to recover depended solely upon whether or not the instrument was executed and accepted upon certain conditions, as it was a question of fact for the jury and not for the court to determine whether the conditions were fulfilled upon which the defendant alleged the acceptance of the order was made.</p> <p>3. Same — Parol Evidence. Between the original parties to a written instrument the rule excluding parol evidence in contradiction of a written agreement is not infringed by proof that the instrument was never delivered, or was delivered to take effect only upon the happening of some future event.</p> <p>4. Same — Erroneous Instruction — Fail to Define Issues. Certain instructions considered and held erroneous for the failure properly to define the issues.</p>