Clark v. Hall

¶1The opinion of the court was delivered by

¶2i Reviewing testimony. Facts admitted,held conclusive. Plaintiff brought suit to foreclose a mechanic’s lien. Judgment was entered for defendants. Plaintiff claims that this was contrary to the evidence, but as ^ recor(j faiis f¡0 g^y that all the evidence is before us, how can we know that it was? See opinion in case of Smith v. Gill decided at the present term, (ante, p. 74,) and cases there cited. It is however insisted that upon the record it appears that certain facts were admitted, and that upon such admitted facts the plaintiff was entitled to a judgment, no matter what other facts might have'appeared in evidence. If the admissions went to all the material questions in the case, there would be great force in this claim, for where a party admits a fact he will not be per- . 1 ^ , _, mittecl to offer testimony tending to disprove it; nor to avail himself of any such testimony if any there be in the case, but will be concluded by his admissions. But where *83there is a single material question not admitted but disputed, and upon which the party complaining holds the affirmative, and the record does not show that it contains all the evidence bearing upon that question, we cannot disturb the judgment.

¶32. Presumption in íngsaná juágmet court. 3. Mechanic’s chaser.’ It may be that that single question was the one upon which the court below decided the case, and that if a]j the testimony 'bearing upon it were before us, it would be perfectly clear that the court decided correctly. It is to be presumed that the decision was correct; and before error will be affirmed it must be shown. Applying this rule to this case and we shall be compelled to affirm the judgment. Plaintiff claimed that he sold the lumber, for which he filed the lien, directly to the defendants. They claimed that they made a contract with one McEall to build a stable, and that McFall was to furnish all the material and do all the work; that they had paid him in Piull except about $80, which they claimed as damages, an(j that McEall bought the lumber of plaintiff. It was admitted that the lumber went into the stable of defendants, that the title to the lots, on which this stable stood, was in one of the defendants, and that the other defendant was authorized to contract for the building. Of course it was a vital question whether the sale was made to defendants or to McEall; for if made to McFall he alone would be responsible, and even a promise by defendants to pay, would be a promise to pay the debt of another, and if not in writing, void. Upon this vital question not only was there no admission, but there was some conflicting testimony; and for all the record discloses there may have been a great deal more.

¶4It is also insisted that a new trial should have been granted on account of newly-discovered testimony, and a couple of affidavits were presented tending to show such testimony, but without all the evidence we are unable to see that this was

¶54. New triáis; «reaevidSl not merely cumulative, and not at all likely to have changed the result. Of course therefore we cannot say that there was any error in overruling the motion *84for a new trial. Upon the record as it stands it appears that defendants have paid to their contractor substantially all that they agreed to pay for the building. Before they should be compelled to pay a second time, and to another party, it should be made plain that they have placed themselves under some legal obligation. This the record does not show, and the judgment will be affirmed.

¶6Upon the filing of the foregoing opinion the plaintiff in error filed a motion for a rehearing. This motion was duly heard, and on the 15th of October was denied. On this motion denying a rehearing the opinion of the court was delivered by

¶75. Reviewing mcun|s¿escw" rnony. The decision in this case was made, and the opinion filed, on the 16th of August last. The main ground upon which the judgment of the district court was affirmed, was a failure in the record to show that all the testimony was preserved. Since that decision a motion for rehearing has been made, and on that motion a stipulation of the attorneys of both parties is filed, to the effect that the record does contain all the testimony offered ón the trial in the district court. This of course changes the nature of the case as it stands before this court; but unfortunately for plaintiff „ . 1 ^ ftrK 111 error onv changes the necessity of affinnanee from one principle to another. Upon the testimony in the record the district court found for defendants. Upon at least one material question there was conflicting testimony, and that is, whether the lumber was sold by plaintiff to defendants, or to one McFall, their contractor. As was said in the former opinion: “Of course it was a vital question whether the sale was made to defendants or to McFall, for if made to McFall, he alone would be responsible, and even a promise by defendants to pay, would be a promise to pay the debt of another, and if not in writing, void. Upon this vital question not only was there no admission, but there was some conflicting testimony; and for all the record discloses *85there may have been a great deal more.” Under the stipulation this last assertion must be omitted, but the others remain unchanged. Upon this question the testimony seems to preponderate in favor of the plaintiff; but still the rule is well settled, that the finding of fact of a district court will not be set aside in this court unless it is clearly against the weight of the evidence. Rose v. Williams, 5 Kas., 488. A mere apparent preponderance is insufficient. We shall be compelled to overrule the motion for a rehearing, because upon the testimony the district court found for defendants, and there is some unimpeached testimony to sustain the findings.