Reports of Cases Argued and Determined in the Supreme Court of the State of Kansas Volume 26 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1882 edition. Excerpt: ...in bankruptcy. We think the pleadings were sufiicient to permit the plaintiff to introduce all the evidence which he did introduce; but as we have stated before, no question was raised in the court below with regard to the sufliciency of the pleadings. The defendant also claims that the court below erred in excluding certain evidence. The evidence excluded was a portion of the testimony of J. M. Steel, the assistant cashier of the Emporia National Bank, and was as follows: Question--"State whether during the latter part of November and fore part of December, 1876, your bank was not permitting Mr. Herman to overdraw his account?" Answer: "Yes." We think this evidence was wholly immaterial. If it was the intention of the parties that the defendent should take the money received from the plaintiff to Emporia, and S. Testimony, .... Emmi: ex-there with this identical money purchase ex-change for the plaintiff, then it was certainly no defense to show that the bank allowed the defendant to over-draw his account; for he would nevertheless be holding the money received from the plaintiff in a fiduciary character; and he failed to use the money as he agreed, failed to discharge his trust, and failed to procure the exchange by any means. But if it was the understanding of the parties that the defend-ant might use this money in his own business and obtain ex-change on his own account, then the defendant would not be holding the money in a fiduciary capacity, whether the bank allowed him to overdraw his account or not; and in such case the claim of the plaintilf would have been wholly dis-charged by the proceedings in bankruptcy without reference to his dealings with the bank. The case was tried from be-ginning to end upon...