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partner. And as they were partners, each virtually a vendee as well as a vendor, it was the same, in effect, as an agent selling his principal's property to himself and paying a part of the purchase money to himself, and then giving himself a receipt therefor. Now, such a transaction will not be sustained or upheld in equity. The supposed contract between the parties cannot, therefore, be upheld in the present case for at least two reasons: (1) Its indefiniteness and the statute of frauds; (2) the sale was by an agent virtually to himself. The fact that the supposed contract was indefinite and uncertain, and was one that should have been in writing, under the statute of frauds, is sufficient to defeat the action for specific performance. Holmes v. Evans, 48 Miss. 247; S. C. 12 Amer. Rep. 372; Minturn v. Baylis, 33 Cal. 129; McGuire v. Stevens, 2 Amer. Rep. 649. Indeed, such indefiniteness and uncertainty in the contract, where the statute of frauds requires that the contract should be in writing, would probably defeat any action upon the contract. Atwood v. Cobb, 26 Amer. Dec. 657, 661 et seq., and especially 668, 669; Reid v. Kenworthy, 25 Kan. 701; Patmore v. Haggard, 78 Ill. 607; Riley v. Farnsworth, 116 Mass. 223; Jordan v. Deaton, 23 Ark. 704; Grafton v. Cummings, 99 U. S. 100. Neither can the present action be maintained, for the reason that the transaction would seem to be simply that of an agent selling his principal's property to his partner, and virtually to himself, without the knowledge or consent of his principal. 1 Pars. Cont. 87; 1 Wait, Act. & Def. 245, 246 et seq., and cases there cited; Bain v. Brown, 56 N. Y. 285. Also, with respect to certain essential elements and incidents inherent in or connected with the action of specific performance, see 3 Pom. Eq. Jur. § 1405, and cases their cited.

The judgment of the court below will be affirmed.

HORTON, C. J., concurring.

HURD, J., not sitting.

v.3,no.12-50

(32 Kan. 58)

MCDONALD, Interpleader, etc., v. COOPER and others.

Filed May, 1884.

Where a petition is filed to set aside the verdict of the jury and judgment of the court, and for a new trial, and afterwards there is filed an application for a new trial, which application is filed after the term at which the verdict is rendered, and too late to be considered by the court, and upon the hearing of the petition and motion, against the objection of the opposing party, evidence is presented in support of the petition and motion together, and the court refuses to hear the cases separately, and, in readering the judgment granting a new trial, disposes of both questions together, and it is impossible to tell whether the court rendered its judgment upon the petition or upon the motion for a new trial, the proceedings are erroneous and must be reversed.

Error from Rooks county.

HORTON, C. J. This case must be reversed and a new trial granted upon the amended petition filed by J. A. Cooper & Co. to set aside the verdict of the jury and the judgment of the court rendered against them on September 9, 1882, for the errors of the court in its disposi tion of said petition, and the motion for a new trial filed March 13, 1883. The motion for a new trial was filed too late, and therefore the objections to it should have been sustained. Sections 308 and 309 of the Code. There was no showing made that the parties filing the motion were unavoidably prevented from filing the same within three days after the rendition of the judgment. In addition to this, it appears from the record that the testimony on the petition to vacate the verdict of the jury and for a new trial, also on the motion to vacate the judgment and to dissolve the attachment, was all introduced by the respective parties before any arguments were made by the attorneys, and before the decision of the court upon either question. Although J. A. McDonald asked the court to hear the cases separately, the court refused to hear them separately, but decided that all the three questions should be submitted, and that afterwards it would take them under advisement and decide them separately. In the rendition of the judgment, however, the petition to vacate the verdict of the jury and for a new trial, and also the motion to vacate the judgment, seem to have been disposed of together, and it is impossible to tell whether the court rendered its judgment that the ver dict of the jury in the case of J. A. Cooper & Co. against J. A. McDonald should be set aside and a new trial granted upon the amended petition, or upon the motion for a new trial. If the judgment was rendered upon the motion it was wholly erroneous, and as we cannot say from the record whether the evidence offered in support of the petition or the evidence in support of the motion was controlling, and as the court committed error in considering the motion and receiving any evidence thereunder, the case must be retried.

For aught that appears, the court may have denied the relief granted on the petition, and yet vacated the judgment on the motion. The

petition charged that there was misconduct on the part of the jury in considering and arriving at the verdict, and especially in arriving at the amount of damages returned. It is unnecessary to comment upon this, as the evidence is very conflicting, and not clear or conclusive. The law upon this matter is fully stated in Bailey v. Bech, 21 Kan. 462, and upon another trial the evidence will doubtless be more satisfactory. No motion for a new trial is necessary to obtain a review of the proceedings of the trial court in its disposition of the motion to vacate the judgment. The interpleader was entitled to have a judgment rendered expressly upon the petition before filing a motion for a new trial, if a motion for a new trial under the circumstances was necessary.

The judgment will be reversed, and the cause remanded for a new trial.

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1. After a written agreement is executed, it is competent to show by parol evidence that both of the contracting parties were agents for other persons, and acted as such agents in making the contract. This evidence in no way contradicts the written contract. Butler v. Kaulback, 8 Kan. 668; Wolfley v. Rising, 12 Kan. 535–538. 2. When the allegation of the execution of a chattel mortgage and the transfer thereof by an indorsement thereon are alleged in a petition, this is to be taken as true if the answer is not verified by affidavit; but this admission does not prevent the defendant from establishing that the chattel mortgage was fully paid prior to the commencement of the action by the holder to replevy the property therein named from the mortgagor.

Error from Chase county.

Action commenced December 5, 1878, by L. W. Nutt against W. H. Humphrey in replevin. The petition is as follows:

Said plaintiff states that he has the legal title to, and the right to the possession of, the following-described personal property, to-wit: One six-year old bay mare, named "Pet," of the value of $100; one brown mare, with white stripe in the face, named "Bird," of the value of $30; one four-year old stallion, named "Joe," of the value of $125. That all of the aforesaid property is unlawfully and wrongfully detained from said plaintiff by the said defendant, and has been so detained ever since December 4, 1878, to the damage of said plaintiff, fifty dollars; that said plaintiff derived his title to said property, and the right of possession thereof, by virtue of the following proceedings, to-wit:

On June 8, 1878, the said defendant and Mary Humphrey and R. A. Humphrey, for a good and valuable consideration, executed to me, G. P. Griffith, of Lyon county, Kansas, their two promissory notes, which are described in a chattel mortgage, a copy of which is set out in this petition, and at the same time, to secure the payment of the same, executed and delivered to said G. P. Griffith a chattel mortgage, (the one herein above namêd,) a duly-certified copy of which is attached to and made a part of this petition, marked Exhibit A, for identity, and is here referred to as a part thereof.

Said plaintiff further states that the bay mare, the brown mare, and the bay stallion named in the said chattel mortgage are the property named and described in this petition; that, at the time of the execution and delivery of the said notes and mortgage, all the parties thereto were residents of Lyon county, Kansas, and the said mares and stallion were taken in said Lyon county, and in June 4, 1878, while all the aforesaid parties were residents of said county, and the said mares and stallion were in said county, the said G. P. Griffith duly filed the said chattel mortgage in the office of the register of deeds of said Lyon county, where it has ever since remained on file; that prior to the fourth of December, A. D. 1878, the said G. P. Griffith, for a good and valuable consideration, duly assigned the said notes and mortgage to said plaintiff, of which assignment on each of said notes the following is a copy, to-wit: "Pay the within to L. W. Nutt, without recourse on me. G. P. GRIFFITH." And of the assignment on the said mortgage the following is a copy, to-wit: "For a good and valuable consideration to me paid by L. W. Nutt, I hereby sell and assign to him, the said Nutt, all my right, title, and interest in and to this mortgage. G. P. GRIFFITH, per W. A. R." That no part of either of said notes or the said indebtedness has ever been paid, but both of the said notes still remain unpaid; that on December 4, 1878, said plaintiff found the said property in the possession of said defendant, and informed him of the said assignments, and told said defendant that he, said plaintiff, was the owner of said notes and mortgage, and demanded of said defendant the possession of said mares and stallion, which he refused.

Wherefore, this plaintiff demands judgment against said defendant for the possession of the said bay mare, brown mare, and bay stallion, and $50 damages for the detention thereof.

BUCK & KELLOGG, Attorneys for Plaintiff.

EXHIBIT A.

Know all men by these presents, that we, Mary Humphrey, William H. Humphrey, and R. A. Humphrey, of the first part, are indebted to G. P. Griffith, of the second part, in the sum of $700. to be paid as follows: $350 on the first day of October, A. D. 1878, and $350 on the fourth day of April, A. D. 1879, according to the terms of two certain promissory notes this day given by said first parties to said second party, payable respectively at the times above specified, with interest at the rate of 12 per cent. per annum.

Now, therefore, in consideration of such indebtedness, and to secure the payment of the same, as aforesaid, said parties of the first part do hereby sell, assign, transfer, and set over to said party of the second part the property described in the following schedule, viz.: One portable saw-mill, known as the Humphrey saw-mill, situated on the Cottonwood river, about seven miles from the city of Emporia, in the county of Lyon, and state of Kansas; four head of horses, to-wit: one six-year-old bay mare, without marks and brands, known as "Pet;" one brown mare, known as "Bird," white stripe in face, no marks or brands; one four-year-old bay stallion, named or known as "Joe," without marks or brands; one roan stallion, named or known as "Silver," without marks or brands: Provided, however, that if said debt and interest be paid as above specified, this sale and transfer shall be void. The

property sold is to remain in possession of said parties of the first part until default be made in the payment of the debt and interest aforesaid, or some part thereof; but in case of a sale or disposal, or attempt to sell or dispose, of the same, or a removal of, or an attempt to remove, the same from Lyon county, Kansas, or an unreasonable depreciation in the value, or if from any cause the party of the second part shall deem himself insecure, he may take such property, or any part thereof, into his own possession; and upon taking said property into his possession, either in case of default or as above provided, said party of the second part shall sell the same at public or private sale, and after satisfying the aforesaid debt and interest thereon, and all necessary and reasonable costs, charges, and expenses incurred out of the proceeds of sale, he shall return the surplus to the said parties of the first part, or their legal representatives; and if from any cause said property shall fail to satisfy said debt and interest aforesaid, said parties of the first part hereby agree to pay the deficiency.

In witness whereof, the said parties of the first part have hereunto set their hands, this eighth day of June, A. D. 1878.

MARY HUMPHREY.
W. H. HUMPHREY.
R. A. HUMPHREY.

State of Kansas, Lyon county-ss.: This instrument was filed for record on the fourth day of July, A. D. 1878, at 1 o'clock P. M., and duly recorded in Book No. 3 of C. M., at page 25. T. R. PAGE, Register of Deeds. By A. R. BANCROFT, Deputy.

For good and valuable consideration, to me paid by Lewis Nutt, I hereby sell and assign to him, the said Nutt, all my right, title, and interest in and to this mortgage. G. P. GRIFFITH, per W. A. R.

This assignment was filed on the third day of December, 1878. Thereafter, and on July 14, 1883, the defendant, having theretofore filed an answer and one amended answer, filed his second amended answer, in words and figures following:

Comes now the defendant W. H. Humphrey, and for second amended answer to plaintiff's petition herein denies each and every allegation thereof, except the execution of the chattel mortgage therein described.

Second Defense. Defendant admits the execution of the notes and mortgage described in plaintiff's petition, and says that this defendant, in the name of his wife, Mary Humphrey, and Oscar J. Hunt, in the name of his wife, Sarah A. Hunt, on the twenty-second day of July, A. D. 1878, entered into a contract, in words and figures as follows, to-wit:

A memorandum of agreement between Sarah A. Hunt, of the first part, and Mary Humphrey, of the second part, witnesseth: That the party of the first part has sold unto the party of the second part the following-described land, to-wit: Commencing at the S. W. corner of the S. E. of N. W. 4, sec. 23, town 19, range 9; thence west 38 rods; thence north 76 rods; thence west 42 rods; thence north 4 rods to the north bank of Cottonwood river; thence along the top of said bank to a park 19 rods directly north of the center of N. W.; thence south to the place of beginning,-all of said land lying in the N. W., 23, 19, 9, containing about 26 acres, more or less. Also 39-100 acres of land, as described in a bond for deed from Henry Wilson, and adjoining the within-described land on the south, with all appurtenances thereto belonging, for and in consideration of $3,000, to be paid as follows: One steam saw-mill at $2,000, and $1,000 with 10 per cent. interest from this date. Said $1,000 to be due in three years from this date.

The said first party agrees to clear the above-described property of all incumbrances that are now upon it of any kind whatever.

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