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packing and selling of raisins in the city of , anything as on a purchase by them of the Fresno.” They agreed that they would "en- Valencias; and, as concerns Hodgkin, so far as deavor to obtain the highest market price for appears, he did nothing under the alleged the grade of goods sold, and in every way en- oral agreement which he was not bound to do deavor to realize upon all goods sold at the in the proper fulfillment of the written conearliest moment, and for the highest price." tract. There was no evidence that curing They further promised, as has been seen, that raisins by the Valencia process, and deliverthey would not sell "below prices named by ing the same when cured, was not the due the association,” without consulting defend and reasonable performance of his prior writant; the association was a body local to this ten promise to "cure and deliver" his entire state, and not shown to bave had any in- crop. Obviously, the executed oral agreefluence in determining prices at the East. ment, which may be proved for the purpose From these provisions of the contract, and of altering a previous written contract, must others not necessary to state, we think Wil- consist in the doing or the suffering of someliams, Brown & Co. were at liberty to sell thing not required to be done or suffered by defendant's raisins at Fresno or elsewhere. the terms of the writing. See Civ. Code, $$ Consequently, on the question whether they 1661, 1595, 1605; Pol. Cont. pp. 161, 162; Vanused reasonable diligence to obtain the best derbilt v. Schreyer, 91 N. Y. 392. True, the market prices, it was as pertinent to show defendant here testified that he sold the Valwhat prices prevailed at Fresno as in any encia raisins, but the alleged sale rests in other readily accessible market. Of course, mere spoken words, which in themselves could this is not saying that they were negligent in not be allowed to alter the writing. His acts not selling at Fresno. On the contrary, it towards the execution of any contract were may have been that the usual course of busi- only such, so far as proved, as the original ness, or other condition affecting their con

agreement required him to perform. A writduct, was such that ordinary prudence allow- ten instrument would afford but slight proteced or required them to ship the raisins to the tion to the parties in such cases, if it could be East. That matter is not for decision now. varied in this manner. A bailment could be

4. In the fifth count of the cross complaint, converted into a sale, or a sale into a baildefendant alleged that he sold and delivered ment, according as the interests of either parto Williams, Brown & Co. "eighty-six thou- ty, after delivery of the goods, might lead sand eight hundred and forty-four pounds of him to the belief, real or feigned, that the Valencia raisins," at the price of three and delivery had not been pursuant to the orig. one-half cents per pound, and that they yet ipal writing, but under a subsequent oral arowe him for the same a balance of $1,243.03.

rangement. At the trial these allegations were strongly 5. There was evidence that about October contested. Defendant was allowed to testify 1, 1893, the said association of growers and that about October 1, 1893, Williams, Brown

packers abandoned their agreed schedule of & Co. agreed with him orally to buy the said prices, the members selling thereafter at what Valencia raisins at the price alleged; appel- rates they pleased; and appellants requested lants objecting that the effect of the evidence the court to charge the jury that if, before is to vary by parol the terms of the written any sale of defendant's raisins by Williams, contract of August 31st. At the outset of his Brown & Co., the prices had been changed testimony, defendant stated that "under the

by the association, and the association had contract"--referring to the instrument of Au

no fixed prices at the time of any of such gust 31st-he delivered to Williams, Brown & sales, then Williams, Brown & Co. were “reCo. all his raisins, including the Valencias; and lieved from any obligation to sell for any asalthough, when he came to testify concern- sociation prices which were fixed at the time ing the alleged oral agreement of October of the entering into the contract.” The in1st, he said that the "written contract refer- struction was rightly refused. If the associared to ordinary raisins; the oral one to dipped tion had, in the course of the season, fixed raisins, called 'Valencias,'”-yet it is clear prices different from those first agreed on, that the Valencia raisins were made from the it may be that such modification should have grapes which were the subject of the writing. been read into the clause of the contract reThe instrument required defendant to cure terred to in the instruction. But no other and deliver to Williams, Brown & Co., on the prices were subsequently fixed. The members terms stated therein, "all grapes and raisins" of the association simply abandoned the rates grown and produced during that season on first agreed on, and we think their action in his vineyard. Defendant stated, in effect, that particular did not release Williams, that he made and delivered the Valencia Brown & Co. from their promise to obtain the raisins to Williams, Brown & Co. on their rates which had been fixed, or, as the alteroral promise to pay 342 cents per pound for native, to consult defendant before accepting five carloads of them. His counsel argue lower prices. The collapse of the association that this is “an executed parol agreement,” would seem to furnish a reason why defend. and therefore that evidence thereof is admis- ant should have desired to be consulted resible to alter the previous writing. Civ. Code, garding prices of subsequent sales, for the $ 1698. We do not think so. We find no evi- natural tendency of that event was to indence that Williams, Brown & Co. ever paid I crease the degree of caution necessary to be exercised by individual sellers. There is in the plaintiffs in error would sign the redeliv. the record, moreover, evidence tending in ery bond they required, and Heber Jones did, some measure to show that Williams, Brown on the 17th day of January, 1896, execute and & Co. did not regard this clause of the con- deliver to Martha L. Shadduck, a bill of sale tract as nullified by the failure of the asso- on the property in question. The property ciation to maintain the agreed prices. Thus, was returned to Jones, and he remained in on October 26, 1893, they wrote to Hodgkin, possession of it until the 17th day of April, saying that up to that time they had “had no 1896, when he died, without having paid the difficulty whatsoever in getting the prices fix- mortgage notes. R. B. Shadduck, agent of ed by the combination"; and as late as April, Martha L. Shadduck, took possession of the 1894, they wrote to him, inquiring whether goods, claiming that she was the owner by they should accept a specified offer for cer- virtue of the bill of sale. The defendant in tain of his raisins they had then in New error, as administrator of the estate of Heber York,-an offer apparently less than the orig. Jones, demanded the possession of the propinal association price.

erty, stating that he was prepared to pay off No material error is brought to our atten- the indebtedness against it. All the evidence tion, except the admission of evidence touch- considered, a sufficient tender by the admining the alleged sale of Valencia raisins to istrator of the amount for which Mrs. ShadWilliams, Brown & Co.; but because of that duck was liable upon the redelivery bond was the judgment is reversed, and a new trial or- made. dered.

The defense in the trial court was based on the theory that the bill of sale was an abso

lute conveyance. Plaintiffs in error in their (9 Kan. A. 776)

brief now present the same and a further deSHADDUCK et al. y. STOTTS.

fense, but no defense not fairly presented in (Court of Appeals of Kansas, Southern Depart. the trial court will be considered by this court ment, W. D. Nov. 21, 1899.)

on review. REPLEVIN-GENERAL DENIAL-DEFENSES- The vital question, aside from the posses APPEAL REVIEW.

sion of the property in controversy, presented 1. In a replevin action, under a general denial,

in the court below, was, what was intended the defendant may prove any defense that he may have.

by the parties? Was the bill of sale an ab2. Cases are reviewed in this court upon the solute conveyance of the property, or was it theory upon which they were tried in the district

intended as a mortgage or contract for indemcourt, and a theory of defense that was not pre sented at the trial will not be reviewed by the

nity, for the purpose of saving the plaintiffs court of appeals.

in error from loss by reason of signing the 3. Where a question of fact is presented to a redelivery bond? Upon this point there was jury upon proper instructions, and the evidence is conflicting, the finding will not be disturbed.

conflicting testimony. The jury found in fa4. The evidence examined. Held incompetent,

vor of the plaintiffs below, which, upon the but not prejudicial.

hearing of the motion for a new trial, was (Syllabus by the Court.)

approved by the trial court. The judgment Error from district court, Reno county; F.

will not be disturbed. Beal v. Codding, 32 L. Martin, Judge.

Kan. 107, 4 Pac. 180; Railway Co. v. Diehl, Action by R. B. and M. L. Shadduck against

33 Kan. 422, 6 Pac. 566; State v. Dorsey, 37 E. Stotts.

Kan, 228, 15 Pac. 240. Judgment for defendant, and plaintiffs bring error. Affirmed.

The evidence and instructions complained

of have been considered. The instructions W. H. Lewis and D. W. Dunnett, for plain- present the law applicable to the facts. The tiffs in error. R. J. Cannell, H. Fierce, and

evidence may be considered incompetent, but Prigg & Williams, for defendant in error.

it is not so prejudicial as to compel a reversal.

Upon the defense, as presented to the trial s OONOVER, J. This action was com- court, the plaintiffs in error had a fair trial. menced by plaintiffs in error to reverse a Counsel for plaintiffs in error has presented judgment rendered against them in the dis- his theory of the case to this court in an able trict court of Reno county in favor of the de oral argument and in a well-prepared brief, fendant in error, E. Stotts, administrator of but the errors now contended for will not the estate of Heber Jones, deceased. On Jan- | justify a reversal of the case as tried and de. uary 17, 1896, Heber Jones was in possession

termined in the court below. The judgment of the personal property (hotel furniture) in- of the district court will be afirmed. volved in this action. R. Bradbridge held a chattel mortgage on the property to secure $200, the payment of which Heber Jones as

(9 Kan. A. 186) sumed. Bradbridge commenced an action in

CHASE . BANK OF HORTON. the district court of Reno county to recover (Court of Appeals of Kansas, Northern Departthe possession of the goods. An order of re

ment, E. D. Nov. 20, 1899.)1 plevin was issued, and the sheriff took the CORPORATIONS-LIABILITY OF STOCKHOLD. property into his possession. A redelivery

ERS – ENFORCEMENT - NEW TRIAL – FIND

INGS. bond was given. Plaintiffs in error signed

1. A right of action in favor of a creditor of a the bond as sureties for Heber Jones. Before corporation, against a stockholder thereof, to en

* Bebearing denied January 6, 1900.

force the constitutional liability of such stock- ration did not assume, for a valuable conholder, accrues only upon the dissolution of the corporation as provided by section 49, c. 66, Gen.

sideration, the payment of the debt which St. 1897. Suspension of business for more than

Chase claims he paid for it. The note evi. one year is equivalent to dissolution, for such dencing the debt was signed by the co-partpurpose, under the provisions of section 45 of

nership prior to its incorporation. In ansaid chapter. The statute of limitations does not begin to run against such action until such

other finding they say that, after the makers dissolution, or the occurring of such facts as are

of the note incorporated themselves into a equivalent thereto.

company, the company took the property, and 2. Where the findings of a jury upon an issue assumed the obligations of the prior co-partmaterial to the decision of a case are wholly irreconcilable, a general verdict should be set aside,

nership. So the findings are irreconcilable. and a new trial awarded. It is not necessary,

The jury seem to have been misled by one of to maintain an action under the provisions of the court's instructions to the effect (though section 49, that a creditor's claim should be reduced to judgment. Proof that the corporation

not exactly in express terms) that, in addi. is indebted to the plaintiff is all that is required.

tion to the taking of the property of the co(Syllabus by the Court.)

partnership, there must be an express conError from district court, Brown county;

sideration for the assumption of the debt. It R. M. Emery, Judge.

the assumption of the debt by the corporaAction by the Bank of Horton against L. K.

tion was a part of the entire transaction by Chase. Judgment for plaintiff, and defend

which the corporation acquired the co-partant brings error. Reversed.

nership property, no additional consideration

was necessary to sustain the contract of asJas. Falloon, for plaintiff in error. Ryan, sumption. In such cases the supreme court Davis & Reeder, for defendant in error. has held that a new trial must be awarded.

3. The next contention is with respect to MAHAN, P. J. This was an action by the the judgment which was offered as evidence Bank of Horton to charge Chase as a stock- of the indebtedness of the grain and mill holder in the Willis Grain & Mill Company, a corporation to the bank. There was suffi. corporation. There was a judgment for the

cient evidence to establish the fact that the bank, and Chase prosecutes this proceeding grain and mill company did owe the bank in in error to reverse that judgment, and con- an amount greater than any possible obligatends that the court erred in three particu- tion of Chase as a stockholder. It was not lars:

necessary that it should be reduced to judg. 1. In not holding that the action was bar- ment, as it is under the other section of the red by the statute of limitations. It is con- statute, providing for execution against the tended under this assignment that a cause of stockholder thereon in case execution against action accrues to the debtor of a corporation the corporation is returned unsatisfied. Any against a stockholder at the time the corpo

legal evidence, uncontradicted, sufficient to ration ceases to do business. In this we are establish prima facie a debt, is all that the clearly of the opinion that counsel are mis- statute requires. The judgment will be retaken. The liability is purely statutory, and versed, and the case remanded, with directhe circumstances under which it can be tions to the district court to award defendant maintained are prescribed by the statute. A a new trial. creditor of a corporation may sue a stockholder directly, as in this case, when the cor- McELROY, J., concurs. poration is dissolved. The statute further provides when and how a corporation is dis- WELLS, J. (dissenting). I concur in the solved for the purpose of enabling such suit correctness of the syllabus, as propositions to be brought. In this case the action did not of law, but dissent from the judgment renaccrue to the bank until one year after the dered. Willis Grain & Mill Company ceased to do business. The statute does not provide that

(9 Kan. A. 772) a resolution of the stockholders can create such a dissolution as to enable a suit to be

WEINER v. BALDWIN. brought. It not one of the conditions speci- (Court of Appeals of Kansas, Southern Depart. fied in the statute. The statute of limitation

ment, W. D. Nov. 21, 1899.) begins to run either at the time of the disso

ACTION ON LEASE–INSTRUCTIONS. lution by expiration of its charter or a judg- The instructions complained of set forth. ment of dissolution, or at the end of one year

Held, under the facts, that they are not mislead

ing, and fairly present the law applicable to the from the time it ceased to perform the func

facts and the issue submitted. tions of a corporation.

(Syllabus by the Court.) 2. The next assignment of error is that the court refused to allow the plaintits in

Error from district court, Reno county; F.

L. Martin, Judge. error a credit for money paid by him on account of an obligation of the grain and

Action by Jennie Baldwin against J. D. mill company. Upon this question of the

Weiner. Judgment for plaintiff. Defendant right of the defendant to this credit the spe.

brings error. Affirmed. cial findings of the jury are conflicting. In C. M. Williams, for plaintiff in error. H. two of the findings they say that the corpo- | Whiteside, for defendant in error.

SCHOONOVER, J. This action was com- chasers of the said stock of merchandise menced by Jennie Baldwin, defendant in er- therein contained. (3) The plaintiff files a ror, in the district court of Reno county, | reply denying all of the allegations of the anagainst J. D. Weiner, plaintiff in error, upon swers. (4) I instruct you, gentlemen of the a written lease, to recover rent alleged to be jury, that the burden of proof in this case is due for a certain building in the city of upon the defendant, and that the plaintiff is Hutchinson. The defendant below brings the entitled to recover the amount prayed for in case here. The errors presented in the brief her petition, unless you find from a preponare that, under the facts of the case, the court derance of the evidence that the defense has erred in its declarations of law in the sixth, proven that it was mutually agreed between eighth, ninth, tenth, and eleventh instructions | plaintiff and defendant that the defendant's to the jury. That the facts may appear, the lease should be surrendered. (5) The agreeinstructions complained of, and separate par- ment to surrender the lease need not be in agraphs that are not objected to, are set forth. writing, and the contract to surrender must They are as follows: "Instructions to the be shown by the defendant to have been Jury. (1) The plaintiff claims judgment for made, either in express terms, or to be imfive hundred twenty-five ($525) dollars, with plied from the facts and circumstances and interest thereon at six per cent, from the time dealings between the plaintiff and defendant, when the several months' payments became and to the other parties to whom the defenddue to this date. This judgment she claims ant transferred the possession of the premby virtue of a written lease which has been ises. (6) The lessee cannot surrender premintroduced in evidence, and which is before ises leased to him, before the expiration of the jury. (2) The defendant admits the exe- the term, so as to absolve himself from the cution of the lease as alleged by the plaintiff, payment of rent thereafter, without the conand for his defense says that he occupied the sent of the lessor. The abandonment of the premises described in the lease until January premises, with notice to the lessor, will not 1, 1893, at which date, by and with the con- exonerate him thereafter from his obligation sent of the plaintiff, he sold his business and to pay rent, unless the lessor consents therethe merchandise contained in said building to to. (7) I'instruct you that the restriction in the Docherty Dry-Goods Company, with his the written lease in evidence against subletinterest in and to said lease, and delivered ting is for the lessor, and may be waived; possession of the said premises and said stock that, if the defendant put in an undertenant, of merchandise and said lease to the Docherty the underletting is not void, but only voidaDry-Goods Company; that the said dry-goods ble, and if the plaintiff does not at once, on company, by and with the consent of the knowledge, and in a reasonable time, declare plaintiff, took possession and control of the the lease void in consequence, or assent to its premises under and by virtue of said lease, surrender, it is still binding in every other reand occupied the same up until the month of spect on the first lessee, and the landlord can February, 1894; that during all of said time sue him for nonpayment of rent and recover. plaintiff recognized and acknowledged the (8) The fact that the plaintiff in the case did said Docherty Dry-Goods Company as her not object to the defendant transferring the tenant, and collected rent for the occupancy possession of the building to the Docherty of said premises from the said Docherty Dry- Dry-Goods Company, or the mere fact that Goods Company, and never after the said 1st she expressed herself with being pleased with day of January, 1893, requested and demand- the change of the store, and the mere fact ed of this defendant the payment of rent, and that she subsequently accepted the payments refused to in any manner recognize the de- of rents due according to the terms of the fendant as her tenant. The answer also al- lease with the defendant, are not conclusive leges that the merchandise of the Docherty evidence, and are not sufficient, standing Dry-Goods Company was sold under a chattel alone, to estop her from denying that she mortgage, and that plaintiff permitted it to consented to the surrender of the lease. (9) remain in the building for a long time there- On the other hand, if you find that the deafter, and demanded and received rent from fendant has shown by a preponderance of the the occupant thereof, and the defendant says evidence that the plaintiff expressly consentthat since January 1, 1893, he did not occupy ed to the defendant transferring the possesor control said premises, nor have any inter- sion of the building to the Docherty Dryest of any kind or character therein, or the Goods Company because she preferred that business that was conducted therein; the company as a tenant to the defendant, or find plaintiff never demanded any rent after the by a preponderance of the evidence that the saià date, but relied wholly upon the occu- defendant surrendered the possession of the pant of the premises from said date to the store to the Docherty Dry-Goods Company, expiration of the lease for the payment of the and that the plaintiff made a new contract of rent of the same. And the defendant further lease with the said Docherty Dry-Goods Comsays that the plaintiff verbally consented and pany, or with the successors of the Docherty promised to defendant that she would release Dry-Goods Company, or any one of them, and him from liability under said lease, in consid- that the said Docherty Dry-Goods Company, eration of defendant permitting said premises or any of its successors, took possession of to be occupied by the said purchaser or pur- the said premises, and paid rent to the said plaintiff, under and by virtue of such new of the agency, the evidence is exceedingly contract or lease, this will estop the plaintiff meager, and is expressly denied by the plain. from now denying the surrender of the first tiff; but, as was said by this court in Hall v. lease. (10) I instruct you further that if the Smith, 3 Kan. App. 688, 44 Pac. 909: “It is evidence shows that defendant sold his stock, not essential that it be proven by any formal and put Docherty & Co. in possession of the written instrument, nor even by a special premises, with no agreement, definite and oral contract. It may be inferred from the mutual, with Docherty & Co., in writing, to mutual conduct and relation of the parties, assume all of his obligations in the lease, and or from the general nature of the transacfor the full term thereof, and that there was tions in which they were concerned and the no assignment of the lease to Docherty & Co. circumstances surrounding them.” We canand their successors, and, in that event, the not say that there was such an entire lack Docherty Dry-Goods Company were under- of any evidence to sustain the finding of the tenants of defendant, unless you find, as here court as would warrant us in setting it aside. tofore instructed, that the defendant surren- The judgment of the district court is afdered the lease with the consent of the firmed. plaintiff. This instruction also applies to the assignment of the lease to Docherty, Kramer & Co., or Martin & Co. (11) If you find that

(9 Kan. A. 770) the plaintiff has failed to show by a prepon

GARFIELD TP. V. THEIS. derance of the evidence that defendant con- (Court of Appeals of Kansas, Southern Departsented to the surrender of the lease in ac

ment, W. D. Nov. 21, 1899.) cordance with those instructions, I instruct

ERROR-SERVICE OF SUMMONS. you that it is immaterial whether she made In proceedings in error, service of sumany attempt to lease the building when it be- mons in error may be made upon the defendant

in error or upon his attorney of record in the came vacant and unoccupied or not."

original case; but such service must be made The facts stated in the instructions clearly as in the commencement of an action, by delivappear from the record. The instructions, ering a copy of the summons in error to the de construed as a complete whole, are not mis

fendant in error or his attorney of record per

sonally, or by leaving one at the usual place of leading, and fairly present the issue. No re

residence of the parties served. quest for special instructions was made. The

(Syllabus by the Court.) evidence was conflicting. The case was tried

Error from district court, Finney county; to a jury, and the verdict was for plaintiff,

William Easton Hutchison, Judge. which was approved by the trial court. From

Action between Garfield township, a mij. a consideration of the entire record, we find

nicipal township of Finney county, Kan., and no error in the instructions that would com

George Theis, Jr. From the judgment, the pel a reversal. The judgment of the district

township brings error. Dismissed. court is affirmed.

Milton Brown, for plaintiff in error. H. F.

Mason, for defendant in error.
BULL V. DUNCAN et al.

SCHOONOVER, J. Consideration of this (Court of Appeals of Kansas, Northern Depart.

case is challenged by motion to dismiss, for ment, C. D. Nov. 24, 1899.)

the reason that the summons in error was AGENT'S AUTHORITY-EVIDENCE.

not served as required by law. A summons The existence of an agent's authority to receive payment of notes may be inferred from

in error was issued and served upon the de the mutual conduct and relation of the parties, fendant in error by reading it to him. No or from the general nature of the transactions copy of the summons was left with him, and in which they are concerned and the circumstances surrounding them.

no waiver of summons or entry of general

appearance has been made. Upon the bearError from district court, Marshall county;

ing of the case, the plaintiff in error attempts W. S. Glass, Judge.

to cure the defect by filling the following affiAction by Charles R. Bull against Sarah A.

davit: Duncan and another to recover on notes.

"[Omitting title.) Application and AidaFrom a judgment in favor of defendants,

vit to Supplement the Sheriff's Return upon plaintiff brings error. Affirmed.

the Summons in Error. Comes now Mike J. H. Broughten, for plaintiff in error. Shrugrue, sheriff of Clark county, in the Strong & Scoville, for defendants in error. state of Kansas, and, being first duly sworn,

deposes and says that he is now, and has PER CURIAM. The only substantial ques- been for more that one year last past, the tion in this case is, did the evidence justify duly elected, qualified, and acting sheriff of the court in finding that Yurann was the Clark county, Kan., and that he is the sheragent of the plaintiff in error in receiving iff that served the summons in error in the payments upon the notes sued on? If the above-entitled action upon the above-named agency existed, then the acts of the agent defendant in error, George Theis, Jr., and became the acts of the principal, and there that he served said writ upon said Theis by was no error in admitting evidence in rela- reading said summons in error to said Theis, tion thereto. As to the fact of the existence as shown by his original return on said writ;

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