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closed with respect to both these claims. Hence, Piatt has no ground for alleging error, except with respect to the other promissory note sued on by Head, and the mortgage so far as it secures such note. This other promissory note last mentioned was executed December 26, 1882, by Piatt to Lavering, for $400, and was indorsed by Lavering to Head, and became due on February 1, 1883. The defendant alleged a failure of consideration with respect to this note; that it was indorsed to Head after it became due; and that Head had knowledge of such failure of consideration; and these were the only disputed questions of fact submitted to the court below for decision. We shall assume, for the purposes of this case, that there was a failure of consideration for the note. There was also some evidence introduced by the defendant Piatt tending to show that the note was transferred to Head after maturity, and that he had notice of the failure of consideration. But, on the other side, there was ample evidence introduced to show that the note was indorsed to the plaintiff before maturity, and that he did not have any notice of any failure of the consideration therefor. The court found, generally, in favor of the plaintiff, and rendered judgment accordingly, without any argument having been made on the evidence by counsel on either side. This judgment was rendered on December 2, 1884. On December 3, 1884, the defendants Piatt and Bond filed a motion for a new trial, and also filed an affidavit in support of their motion. The grounds set forth in their motion for the new trial are as follows:

“(1) Irregularity in the proceedings of the court during the trial. (2) Abuse of discretion on the part of the court in refusing to allow said cause to be argued by counsel. (3) Accidents and surprise which ordinary pru dence could not have guarded against. (4) That the decision is not sustained by sufficient evidence. (5) That the decision is contrary to law. (6) Errors of law occurring at the trial, and excepted to by the defendants at the time. (7) Newly-discovered evidence material for the said defendants, which they could not have discovered and produced at the trial by the use of ordinary diligence."

The principal grounds urged for the new trial were the second, fourth, and fifth, as above set forth. The defendants, in support of said second ground, filed an affidavit of A. M. Hallowell, the attorney for the defendants Piatt and Bond, which affidavit tended to support such ground. On the other side the plaintiff filed a counter-affidavit of J. G. Lowe, which states, among other things, the following:

"That after the evidence had been all introduced in the cause, Charles Smith, partner of affiant, and one of the attorneys for plaintiff, asked of A. M. Hallowell, in a loud voice, and in the presence and hearing of the court, two or three times, if he wished to argue the case, and stated that counsel for the plaintiff did not wish to argue the cause unless counsel for defendants should wish to do so; that counsel for defendants remained quiet, and did not answer counsel for plaintiff, nor demand a right to argue; that the court then rendered judgment for plaintiff, and asked defendants' counsel if he wished to except to the ruling; that counsel for defendants then took an exception, and then told the court that he would like to argue the cause; that the court then in

formed counsel that he was satisfied, and did not care then to hear any argument; that every legal point in the case had been as fully argued by counse! for both parties as they desired, without limit or restraint."

This motion for a new trial was fully argued upon both sides, and was overruled by the court, to which ruling the defendants excepted. The only question presented to this court is whether the court below abused its discretion in refusing to hear an argument in the case after the evidence had all been introduced, and before a motion for a new trial was filed. After the motion for a new trial was filed, and upon such motion, a full argument was had in the court below; but the real question presented to this court is whether the court below erred in refusing to hear such argument prior to the filing of the motion for the new trial. Of course, the court below knew what had transpired in the case, and taking the affidavit of J. G. Lowe to be true, which it evidently did, and which we think we must also do, we cannot, under the circumstances, say that the court below committed any material error. We think the defendants waived all their right to argue the case upon the evidence before the decision. It seems that the case had already been sufficiently argued upon all the legal questions involved in the case. When the plaintiff's counsel asked the defendants' counsel whether they desired to argue the case or not, stating that the plaintiff's counsel did not wish to do so, and the defendants' counsel failed and refused to make any answer, the court had a right to infer that the defendants' counsel did not wish to argue the case, and had a right to render its decision, as it did, without first hearing any argument upon the evidence. There is no claim or pretense that the defendants' counsel did not hear the plaintiff's counsel, and unquestionably they did. The affidavit above quoted shows that counsel for the defendants did not ask to argue the case until after the decision of the court below had been made, and until after they had taken an exception to such decision. Besides, in the present case, the entire case was submitted to the court for decision. The court was the trier of the facts of the case as well as of the law, and the defendants, on the motion for the new trial, had a right to make, and did make, an argument to such trier upon the entire case, the facts, the evidence, and the law. Under such circumstances, we think a clearer case of error, and a stronger case for reversal, should be made out than where the case has been tried before a jury. In the case of Douglass v. Hill, 29 Kan. 527, the case was tried before a jury, and a strong case of error was made out. In that case there was really no excuse for refusing to permit an argument to be made to the jury, and, of course, the judgment rendered therein had to be reversed. In this case, however, we think there was not only a sufficient excuse, but a justification, for the action of the court in rendering its decision without arguments having first been made; and we think there was a sufficient excuse for the refusal of the court to hear arguments after the decision was made, and prior to the time of the

hearing of the motion for the new trial. Bond was in default, and had no right to make any argument at all; and Piatt's counsel, by his action, or rather silence, when he should have spoken, waived his right to make an argument at the close of the trial.

Before closing this opinion we might suggest the question that if there was really a failure of consideration for the $400 note sued on by Head, why did the defendant Piatt voluntarily permit a judgment to be rendered against him, and in favor of Lavering, the original payee of said $400 note, for money due on still another claim still held by Lavering, and for the foreclosure of this same mortgage, which secured all the claims? He knew that the said $400 note was a negotiable instrument, and that Head claimed to be an innocent holder thereof for value, and by indorsement before maturity, and he should have been prepared to defeat all claims of Lavering up to the amount of this note.

The judgment of the court below will be affirmed.

(35 Kan. 290)

INGRAHAM V. MORRIS.

Filed May 7, 1886.

1. ASSUMPSIT-WORK AND LABOR-PLEADING.

An allegation that the "plaintiff contracted with the defendant to cut and bind wheat for the defendant," is not an allegation that the plaintiff contracted with the defendant to cut and bind all the wheat which the defendant owned.

2. ERROR-VERDICT-CONFLICTING EVIDENCE.

Where the evidence is conflicting upon a given subject, but sufficient to sustain the verdict of the jury, the supreme court cannot set aside such verdict.

Error from Wyandotte county.

W. C. Stewart, for plaintiff in error.

Stevens & Stevens, for defendant in error.

VALENTINE, J. This was an action brought by George A. Morris before a justice of the peace of Wyandotte county, Kansas, against H. S. Ingraham, for work and labor in cutting and binding wheat. Judgment was rendered in favor of the plaintiff, and against the defendant, and the defendant appealed to the district court, where the case was tried before the court and a jury, and a verdict and judgment were rendered in favor of the plaintiff, and against the defendant, for $54.50, and the defendant, as plaintiff in error, brings the case to this court.

The plaintiff in error, defendant below, alleges two principal grounds for reversal of the judgment of the court below: First, that the plaintiff below did not prove the cause of action which he set forth in his bill of particulars; second, that he did not prove any cause of action.

The plaintiff alleged in his bill of particulars, among other things, as follows:

"That some time in the month of April, 1884, plaintiff contracted with the defendant to cut and bind wheat for the defendant, for which the defendant was to pay the plaintiff at the rate of $1.50 per acre; that in pursuance to said agreement plaintiff cut and bound 38 acres, amounting to $57, which defendant refused to pay."

The evidence on the trial showed that the defendant had about 56} acres of wheat, in three separate pieces; that the plaintiff cut and bound two of such pieces, or 36 acres, and did not cut or bind the other piece, which contained about 20 acres. The plaintiff in error, defendant below, now claims that the plaintiff alleged in his bill of particulars, in effect, that he agreed to cut and bind all the defendant's wheat, while his proof introduced on the trial showed that he agreed to cut and bind just 20 acres of such wheat, and no more; and therefore he claims that there was a variance between the plaintiff's allegations and his proof, and therefore that he cannot recover. We perceive no such variance. The plaintiff did not allege that he agreed to cut and bind all the defendant's wheat, but simply alleged that he "contracted with the defendant to cut and bind wheat for defendant," without alleging any amount; and the evidence not only proved that the plaintiff agreed "to cut and bind wheat for the defendant," but also proved that he did in fact cut and bind the same. The allegation that the "plaintiff contracted with the defendant to cut and bind wheat for the defendant," is not an allegation that the plaintiff contracted to cut and bind all the wheat which the defendant owned. In our opinion, there is clearly no variance between the plaintiff's allegations and his proof.

The plaintiff in error, defendant below, further claims that the plaintiff below did not prove any cause of action; and this claim is founded upon the theory that the plaintiff agreed to cut and bind all the defendant's wheat, but failed to do so.. The question as to what the plaintiff agreed to do is a question of fact, which was submitted to the jury upon the evidence, and the jury found against the defendant and in favor of the plaintiff, and the court below sustained the verdict of the jury; and while the evidence was conflicting and contradictory, and possibly the preponderance thereof in favor of the defendant, yet we think there was sufficient evidence to sustain the verdict of the jury, and hence their verdict must be sustained. The plaintiff himself testified that he did not agree to cut and bind all the defendant's wheat; that he refused to make any such agreement; and refused, particularly, to agree to cut and bind the 20-acre piece. Indeed, he testified that he did not agree to cut and bind more than 20 acres, but that he did in fact cut and bind 363 acres. The judgment of the court below will be affirmed. (All the justices concurring.)

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JUSTICE OF THE PEACE-APPOINTMENT TO FILL VACANCY-ELECTION.

The governor appointed the defendant in August, 1885, to fill a vacancy in the office of justice of the peace of the city of Topeka. The plaintiff was voted for, and claimed to have been elected, to fill such vacancy, at the general election held in November, 1885. Held, that the vacancy could not be filled by an election before the regular city election held in April, 1886, to which time the defendant was entitled to hold the office under the appointment of the governor, and until his successor then chosen had qualified.

Original proceedings in the nature of quo warranto.
David Overmeyer and Joseph T. Ward, for plaintiff.
Webb & Spencer and J. H. Dinkgrave, for defendant.

JOHNSTON, J. This is an action in the nature of quo warranto, brought by Joseph T. Ward to try the title to the office of justice of the peace of the city of Topeka, which office, he alleges, has been usurped, and is unlawfully held, by the defendant, H. S. Clark. The case has been presented here upon the defendant's demurrer to the petition of the plaintiff.

From the petition it appears that J. M. Matheny was elected to the office in question in April, 1885, and resigned it in August of that year. Immediately upon the resignation of Matheny, and more than 30 days preceding the general election in November, 1886, the defendant, H. S. Clark, was appointed by the governor to fill the vacancy caused by such resignation. At the general election held on November 3, 1885, the plaintiff was voted for, and received the highest number of votes, for justice of the peace, to fill out the unexpired term for which Matheny was elected. The plaintiff claims the office by virtue of this election, contending that under the provisions of section 11 of article 3 of the constitution it was a proper election to fill the vacancy occasioned by the resignation of Matheny, while the defendant claims that the vacancy could not be filled by election until the regular city election held in April, 1886, and that he was entitled to hold the office by virtue of the appointment of the governor until that time. The question raised by the pleadings has been practically determined by former decisions of this court. In section 11 of article 3 of the constitution it is provided that, "in case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than 30 days after such vacancy shall have happened." The phrase "next regular election" found in the above provision has been defined to be "the next election held conformably to established rule or law," and also "the regular election prescribed by law for the election of a particular officer to be elected." State v. Cobb, 2 Kan. 32; Matthews v. County Com'rs of Shawnee Co., 34 Kan.-; S. C. 9 Pac. Rep. 765.

It is true that the statute provided for the annual election of town

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