first he would inherit one-half of her estate in any event, and might inherit the whole of it. This is also correct; but from these things the plaintiff goes further, and claims that Griffith, as the manager of the business of the firm, could not have any dealings with his wife without gaining some private advantage at the expense of the firm, and that this private advantage would have the effect to destroy the validity of all such dealings. This we do not think is correct. The remote interest which a husband has in his wife's property cannot prevent him from having business dealings with her, although he may be acting for a partnership of which he is a member, provided, of course, that such dealings are honest and in good faith; and such dealings will be upheld and sustained in equity whenever it is equitable that they should be upheld and sustained. This action is itself an equitable action, and, as the plaintiff seeks equity, he should be willing that equity should be extended to others. Now, it is certainly equitable, where the money of Mrs. Griffith has gone into the partnership funds for the purpose that it should be used, and where it has been in fact used, to pay off and discharge a partnership past-due debt, and has also relieved the partnership property from a chattel mortgage already past due, that she should have her money returned to her; and as it was understood at the time when she loaned the money that if it was not repaid to her in a short time she should have a chattel mortgage on the property of the firm to secure the debt, and as she afterwards obtained the chattel mortgage, it is certainly equitable that she should have a lien upon the mortgaged property. Her mortgage was simply placed upon the same property which had been relieved from the previous chattel mortgage by the payment of her money.

2. It is also claimed that the mortgage is void for the reason that it was given for a pre-existing debt. In other words, the money was loaned, the debt created, and the note given on August 15, 1886, and the mortgage to secure the debt was not executed until September 6, 1886. This mortgage, however, was given in pursuance of an agreement made at the time when the money was loaned that such should be done in case the money was not soon refunded; but, even if no such agreement had ever been made, the ground for claiming the mortgage to be void would hardly be sufficient. Draper v. Cowles, 27 Kan. 484. Before the plaintiff or any one else should be allowed to say that the mortgage should be held void he should refund to Mrs. Griffith her money. The judgment of the court below will be affirmed. All the justices concurring.

(43 Kan. 538)

STRATTON et al. v. HAWKS. (Supreme Court of Kansas. April 4, 1890.) LOST DEED-FINDINGS BY COURT-REVIEW. 1. Only that degree of proof that is necessary to satisfy the trial court of the existence of the

fact that the original is not in his possession, or under his control, is required to entitle a party to use the record of a deed in evidence.

2. A finding of fact necessarily embraced in the general judgment rendered by the trial court will not be disturbed in this court if there is some evidence to sustain it.

(Syllabus by Simpson, C.)

Commissioners' decision. Error from district court, Wabaunsee county; R. B. SPILLMAN, Judge.

George G. Cornell, for plaintiff in error. Hazen & Isenhart, for defendant in error.

SIMPSON, C. The defendant in error, Isadora Hawks, filed her petition in the district court of Wabaunsee county, in April, 1885, in which she demanded partition of certain real estate, alleging that she was the owner of an undivided half thereof, and that Levi Stratton was the owner of the other half. Stratton answered, denying her ownership of an undivided half of the land, and claiming that one Jacob Beard was the owner of that part of the land claimed by her. Jacob Beard and Permelía, his wife, by permission of the court, were made parties; and they filed answers, claiming that Jacob Beard was the owner of that part of the land claimed by Isadora Hawks. The real controversy was between Isadora Hawks and Jacob Beard as to the ownership of the one undivided half of the real property. The case was tried by the court, who rendered a judgment partitioning the land between Isadora Hawks and Levi Stratton. Beard brings the case here. The objections, made by the attorneys of the defendant in error, that the petition in error was not filed within a year, and that the case made does not show affirmatively that the motion for a new trial was filed in time, are not well taken, and are both overruled.

The history of the transaction out of which arises the contention about ownership is as follows: On the trial of the case, title was admitted from the government down to Levi Stratton and Jacob Beard. The principal question was whether Beard and wife had executed a deed for their interest in the land to one R. M. Thompson, through whom Isadora Hawks claims. The defendant in error, to maintain the issues on her part, introduced as a witness the register of deeds of Wabaunsee county, who brought with him the record of a deed from Beard and wife to Thompson. That was offered in evidence. The deed was claimed as a forgery by Beard and wife, and they objected to the introduction of the record. George W. Hawks, the husband of Isadora Hawks, was then examined for the purpose of laying a foundation for the introduction of the record. He testified in chief and cross-examination that he had done the correspondence, and directed the business, in purchasing the land for Isadora Hawks; that she never did have the original deed in her possession or under her control, either directly or by his agency; that he had the custody of all the deeds, papers, and business of the family; and that he knows that she has not the

possession of the deed, as the original deed was never sent them from Ohio. He said that it might be that his wife had the deed, without his knowledge, "but it is not at all probable." This record shows that the deed was executed on the 28th day of May, 1878, in Clinton county, Ohio. It was filed for record in Wabaunsee county on the 29th day of November, 1879.

It is very strongly urged that no proper foundation was shown for the introduction of the record of the deed in evidence, and that the trial court erred in permitting it to be read. The attorney of the plaintiffs in error draws the line very strictly; and, while he does not cite the case of Brock v. Cottingham, 23 Kan. 383, he had it in mind when he wrote his brief. It has no application to the case we are considering. In that case an execution was alleged to have been lost, and the party was seeking to prove its loss, and then its contents by parol; and this court held to the strict rule; that its loss must clearly be proven, and that its last known custodian must be introduced to show the loss. The question here is, what amount of proof is necessary to satisfy the court that an original deed, that has been duly recorded, is not in the possession or under the control of a party who is seeking to introduce the record of the deed, to admit such record? Section 387a of the Civil Code, and section 27, c. 22, Comp. Laws 1885, are probably the only statutory provisions regulating the introduction of the record, and determining its effect as evidence when introduced. These two sections seem to require only such proof as will satisfy the court that the original deed is not in the possession or under the control of the party desiring to use the record, in order to entitle the record to be admitted. In truth, the section of the Code that is more particularly applicable does not prescribe how it shall be determined that the original is not in the possession or under the control of a party desiring to introduce the record. The other section, that allows certified copies of the record to be introduced, says that, upon proof that the original is not in the possession or under the control of the party desiring to use it, certified copies of the record may be introduced. Probably both sections mean that the record, or certified copies of the record, may be introduced whenever it is shown to the satisfaction of the court that the original is not in the possession or under the control of the party offering the record, or a certified copy thereof. Only that degree of evidence is required that creates a reasonable certainty of the existence of that fact.

Complaint is made in this case because Isadora Hawks was not put upon the witness stand to testify as to her possession and control of the deed to Thompson. Suppose she had been. She would have, undoubtedly, stated that her husband transacted her business, and was the custodian of all the papers connected with it. The showing would not have been made stronger by the addition of

her evidence.

It is a mere matter of evidence, (Williams v. Hill, 16 Kan. 23;) and all that is necessary to do is to produce enough to satisfy the trial court of the fact that the original is not in the possession or under the control of the party offering the record. The degree of evidence required must, of necessity, be governed by the particular circumstances surrounding each offer. In this case the proof offered was satisfactory to the trial court, and must be regarded as sufficient on review, under well-known and oft-repeated rules.

Another objection to the introduction of the deed, or rather the record of it, was made on account of a defective acknowledgment; but, as the objection is a general one, and no particular defect is pointed out or insisted on in the brief of counsel for plaintiffs in error in this or the subsequent deeds to which an objection is made, we will not notice the objections.

It is also insisted with vigor and ingenuity that there was no delivery of the deed from Beard and wife shown by the record. This was one of the most closely contested questions involved in the case. The direct evidence bearing upon it was conflicting. Many circumstances were shown from which strong inferences arose tending to support both theories. The judgment rendered by the trial court necessarily includes a finding that there was a delivery of the deed to Thompson, because, if the trial court had been of the opinion that there had been no delivery of the deed, the inevitable result would have been that the judgment would have been rendered in favor of the party now here complaining. It is true, beyond all qualification, that there is some evidence to support the finding contained in the judgment, that there was a delivery of the deed to Thompson. Hence we cannot disturb the judgment for the reason urged, without entirely disregarding wellestablished rules. We have discussed the material questions sufficiently; the others are unimportant. There are no reversible errors in the record. It is recommended that the judgment be affirmed.

following week, the jurisdiction and control of the court over such cases for that term is not lost by the first order.

(Syllabus by Simpson, C.)

Commissioners' decision. Error from district court, Pratt county; S. W. LESLIE, Judge.

R. F. McGrew, for plaintiff in error. Noffsinger & Carskadon, for defendant in error.

SIMPSON, C. This action was commenced by George A. Williams, in the district court of Pratt county, on the 19th day of November, 1887, against the sheriff of Pratt county, to recover possession of a general stock of merchandise in the town of Preston, in said county, that was in the custody of the sheriff by reason of attachment proceedings against one Matthew Williams at the suit of several wholesale merchants. George A. Williams is the son of Matthew Williams, and claims to be a purchaser for value of the stock of merchandise attached. There was a trial by a jury, and a verdict and judgment in favor of George A. Williams for the return of the property, or its value, assessed at $1,000, and for $180 damages for its detention. A mo

tion for a new trial was overruled. The sheriff brings the case here for review, and alleges several errors, the principal one being the overruling of his motion to quash the writ of replevin, because "there was no affidavit in said action upon which to base said writ."

The "case made," filed in this court, does not contain any affidavit, as required by section 177 of the Civil Code. The trial court certifies that the case made contains a correct transcript of all the pleadings, records, proceedings, etc. A motion was made in this court to send the case back to the trial judge for correction. It was asserted that the affidavit in replevin that was in the case made at the time it was served for amendment, also the second clause of a motion to set aside the writ of replevin because there was no affidavit, are not now in the case made, and consequently are not a part of the record. The trial judge has no power over the case made after it is certified, (Lewis v. Linscott, 37 Kan. 379, 15 Pac. Rep. 158, and authorities cited therein,) and we cannot grant this motion. These controversies about the contents of cases made are not creditable to the attorneys, and would rarely occur if that degree of care and examination would be bestowed upon them at the time of their settlement that ordinary prudence demands. It is primarily the duty of the attorney of the plaintiff in error, in the preparation of a complete case made, to insert therein all the file papers, the journal entries, and all the evidence; or, if this is not necessary to the determination of the questions to be reviewed in this court, so much thereof as is essential for that purpose. After its service on the attorney of the defendant in error, it becomes his duty to carefully examine it, and if, in his opinion, it does not contain all that is rev.23p.no.10-38

quired, to suggest amendments thereto, and return the case made, with his suggestions. It is equally the duty of both attorneys to be present at the time and place of settlement, if due notice has been given thereof, to see that the case made contains all the essential requisites before it is settled and signed by the trial judge. If these various duties are faithfully performed, there can be no reasonable cause for contention about the correctness of a case made, except in cases wherein it is alleged that changes have been made after the settlement. This court has no power to change a case made in any respect. We may disregard manifest clerical errors, (Edmondson v. Beals, 27 Kan. 657,) or may disregard the certificate of a trial judge, when it is shown to be intentionally false, (Railway Co. v. City of Fort Scott, 15 Kan. 435.) It may be possible that a case might arise in which there was such a conclusive showing that the case made had been so changed after its settlement that such gross injustice would result from a record so constituted that this court would decline to consider it. In this particular case the contention is about an entirely immaterial matter, and we shall pay no attention to it.

One of the principal errors complained of was the overruling of a motion to set aside the writ of replevin because there was no affidavit in replevin. As this was provisional, and the plaintiff in the action did not get the property by virtue of the writ of replevin, it becomes entirely immaterial after judgment. Even if the writ of replevin never issued, the action could proceed as one for damages. An action in replevin may be maintained under our Code without a seizure of property at some time before the final determination of the suit, and therefore without an affidavit. Hoisington v. Armstrong, 22 Kan. 110; Wilson v. Fuller, 9 Kan. 177; Ward v. Masterson, 10 Kan. 77. In the case of Batchelor v. Walburn, 23 Kan. 733, BREWER, J., speaking for the court, and construing section 176 of the Code, says: "The plaintiff may, not must; and he may at the commencement of the suit, or at any time before answer. The action exists, or may exist, before the order. The section recognizes the action, and says. certain things may be done in it. It nowhere provides that a failure to take the order abates the action, or that defendant may prevent a recovery by showing that plaintiff has not availed himself of all the privileges which the statute has given. The order for the delivery is ancillary. It is like an order of injunction, which may be the final judgment or a provisional remedy. Code, § 237. In replevin, the judgment may be for the possession, or the value thereof, in case a delivery cannot be had. Id. § 185. And delivery may be enforced after judgment by attachment, as for a contempt. Id. § 188. It would be a strange omission if such action could not be maintained; in many cases, a gross denial of justice." It is evident from all these cases that, even if there was no affidavit in

replevin in this particular case, the error overruling the motion to set aside the order of replevin for that reason, is now, after judgment, and probably before, an immaterial one. In any event, it probably could only effect a question of costs. It could not abate the action. This is not only expressly decided, but clearly demonstrated.

The next error seriously urged for reversal is the overruling a motion for continuance. On Saturday, the 14th day of January, 1888, during the regular term of the Pratt county district court, an order was made continuing this case, with all others, until the April term. This order was made by the judge on his own motion. In a few minutes thereafter the court announced that the orders for continuance made previously in all such cases would be set aside, and the cases tried during the following week; and on the 17th day of January following the court caused an order to be entered on the journal setting aside the orders for continuance heretofore made. To this latter order the plaintiff in error excepted. This order also assigned this case for trial on the 18th day of January. The case was not reached for trial in regular order until the 20th day of January. On the 19th day of January the plaintiff in error filed his motion for a continuance. On this statement the plaintiff in error claims that by the order of continuance made by the court on Saturday, the 14th, the case was off the docket for that term, and passed out of the control of the court, and could not be reinstated. In the case of Gray v. Ulrich, 8 Kan. 112, a continuance was granted by consent of the parties; but afterwards, during the term, on application of one of the parties in the absence of the other, the continuance was set aside, and the case heard. The court, commenting on some other errors, says: "Ordinarily, too, it is improper, after a case has been continued, to set aside the continuance and dispose of the case, in the absence of one party, and on the application and in favor of the other. A record thus scarred is not comely to look upon. However, if these were the only errors, we should probably be constrained to let the judgment stand until, at least, application had been made to the court in which it was rendered to vacate it." This is a much stronger case than the one we are considering. Here the order of continuance was only in existence a few minutes, was made by the court on its own motion, and changed by the court. The case was not tried or disposed of in the absence of either of the parties to the action. In the case of State v. Plowman, 28 Kan. 569, a criminal case, in which the defendant was charged with robbery, a continuance was ordered by the court on the motion of the defendant. Shortly after this, the order of continuance was set aside, and the case tried. Substantially the same claim was urged for reversal in that case as in this. It was said that when the court made the order for continuance the case wholly passed beyond the jurisdiction of the court for that

The

term. This was denied by this court, and the conviction and judgment affirmed. trial judge makes a statement respecting this continuance, and incorporates it in the case made; but it is not material, except in his statement that he ordered the order of continuance set aside within a very few minutes after it was made. We have grave doubts whether, under any fair construction of the motion for a new trial filed in this case, this alleged error was called to the attention and passed upon by the trial court; but we have considered it, and do not think it a sufficient cause for reversal. This brings us to the consideration of the sufliciency of the affidavit for a continuance, and it so manifestly falls within many of the reasons given in the cases of Kilmer v. Railroad Co., 37 Kan. 84, 14 Pac. Rep. 465, and Board v. Linscott, 30 Kan. 240, 1 Pac. Rep. 81, and is especially so largely in the discretion of the trial court, that its ruling will not be held to be errone

ous.

His

Finally, it is insisted as causes for reversal that the amount of damages is excessive, and that there is error in the assessment of the value of the property taken. These are questions peculiarly within the province of a jury to determine, and as to the first there is some evidence to sustain it; and as to the second the jury decided between the value as stated by the defendant in error and the amount as stated by him that was realized by the sheriff's sale. The plaintiff below had the right to recover the market value of the goods at the time they were taken from his possession by the sheriff on the attachment levies. statement was that the goods were of the value of $1,400. On his cross-examination he stated that the goods seized were afterwards sold by the sheriff for the sum of $642.12. On these statements the jury returned in their verdict the value at $1,000; this sum being a fair average between the two methods of valuation, and probably nearer correct than either of the others. The amount cannot be considered excessive, under the evidence, and the verdict was approved by the trial court. We recommend an affirmance of the judgment.

PER CURIAM. It is so ordered; all the justices concurring.

(43 Kan. 481)

SHANE v. PALMER. (Supreme Court of Kansas. April 4, 1890.)

PAYMENT-AGENT-AUTHORITY.

An agent who loans money and collects and remits interest to a non-resident holder of note and mortgage, and is expressly authorized to remit principal and interest after loan is due, is authorized to receive payment on said note and mortgage, although they are not at the time in his possession, (Syllabus by Strang, C.)

Commissioners' decision. Error from district court, Dickinson county; M. B. NICHOLSON, Judge.

John H. Mahan, for plaintiff in error. Stumbaugh, Hurd & Dewey, for defendant in error.

STRANG, C. Action for foreclosure of mortgage. Defendant pleaded payment to T. C. Henry & Co., and alleged that they were the agents of the plaintiff below, with quthority to receive such payment. The undisputed evidence in the case shows that on the 20th day of January, 1880, A. H. Vansant and wife executed to Asa C. Palmer, plaintiff in the case, the note and mortgage sued on, for $250, due in five years, with interest at the rate of 10 per cent., payable semi-annually; that afterwards, and before said note became due, the plaintiff in error became the owner of the legal title to the premises upon which the mortgage in suit was made a lien; that, as each semi-annual coupon for interest became due, the plaintiff in error paid the amount thereof to T. C. Henry & Co., who claimed to be the agents of the defendant in error, and who receipted to him for the same, forwarded it to the defendant in error, whereupon he returned to them the coupon therefor, and they delivered it to the plaintiff in error; that a few days before the note sued on became due the plaintiff in error paid the same, with the amount of the last interest coupon thereon, to T. C. Henry & Co.; that T. C. Henry & Co. failed to pay over to the defendant in error the money so paid them. The only disputed question in the court below was whether or not T. C. Henry & Co. were the agents of A. C. Palmer, with auhority to receive the money on said note. That question the court below resolved in favor of the plaintiff, and entered judgment for him for the amount of the note and for costs. The defendant filed a motion for a new trial, which was heard and overruled, to which order, overruling the motion for a new trial, the defendant objected and excepted, and assigns as error herein the refusal of said court to grant a new trial. The question to be determined here is, did the court below commit error in refusing to grant a new trial? And this question turns upon the further question, were T. C. Henry & Co. the agents of A. C. Palmer, plaintiff below, to collect the money due on the note sued on? If T. C. Henry & Co. had no authority to receive such payment, then the record discloses no error; but, if they had such authority to receive such payment, then the judgment of the court below is erroneous, and should be reversed.

It is a very serious question whether the defendant below was not justified in making the payment of said note and interest to T. C. Henry & Co. by reason of the course of business between them. For nearly five years T. C. Henry & Co. had in fact acted as the agents of the plaintiff below in connection with his loans in Dickinson county. They had loaned his money; collected both the interest and principal of said loans. The several state

These

ments of account by the plaintiff below with T. C. Henry & Co., produced in evidence, all show that he expected them to make collections for him as well as to loan his money. Besides, he frequently reminded them that the interest on certain loans and the principal of others were due him, and asked them to remit the same. How could he expect them to remit money due on his notes and mortgages without they were authorized to collect the same? Commencing in July, 1880, about the time the first interest coupon was due on the note sued on, the plaintiff below refers 15 times, in so many different letters addressed to T. C. Henry & Co., to the particular claim in suit in this case. In a number of such letters he reminds them that the interest on the note is due, and asks them to remit it to him. In others he refers to coupons inclosed, on which they have collected the interest, and remitted it to him. letters and accounts stated by Palmer with Henry & Co. come very near disclosing express authority to collect all the claims therein referred to. But the right of Henry & Co. to collect the note sued on need not be based upon authority conferred in these letters and accounts stated between Palmer and Henry & Co. by Palmer himself. Turning to page 26 of the case made, we find another letter addressed to Henry & Co. by Palmer, in which he says: "There is now due me the A. H. Vansant principal and interest, January 20th, $262.50. Please remit." The sum named as principal and interest was the full amount of the claim sued on. We have no hesitation in saying that this letter confers explicit authority on Henry & Co. to receive the money on the Vansant note. Palmer says to Henry & Co., "There is $262.50 due me on the principal and interest of the claim in dispute," and adds, "Please remit." If he had said, "Please collect and remit," the authority of Henry & Co. to receive payment of said claim would not have been questioned. Why are not the words, "Please remit," under the circumstances, equivalent to, "Please collect and remit?" Henry & Co. could not remit without first collecting or receiving the money on the note. Authority to remit must necessarily, under such circumstances, include authority to receive. It is said Henry & Co. did not have in their possession the note when they received and receipted to plaintiff in error for the money paid them thereon. Neither did Henry & Co., at any of the many times when interest was paid on said note, have in their hands the coupon for the interest paid; but they received the money and receipted for it to plaintiff in error, and remitted it to Palmer, and in due time received from him the coupon, and delivered it to the plaintiff in error.

We believe Henry & Co.had explicit authority from Palmer to receive the money on the note sued on. It therefore follows that the judgment of the court below is erroneous, and we recommend that it be reversed, and