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packing and selling of raisins in the city of Fresno." They agreed that they would "endeavor to obtain the highest market price for the grade of goods sold, and in every way endeavor to realize upon all goods sold at the earliest moment, and for the highest price." They further promised, as has been seen, that they would not sell "below prices named by the association," without consulting defendant; the association was a body local to this state, and not shown to have had any influence in determining prices at the East. From these provisions of the contract, and others not necessary to state, we think Williams, Brown & Co. were at liberty to sell defendant's raisins at Fresno or elsewhere. Consequently, on the question whether they used reasonable diligence to obtain the best market prices, it was as pertinent to show what prices prevailed at Fresno as in any other readily accessible market. Of course, this is not saying that they were negligent in not selling at Fresno. On the contrary, it may have been that the usual course of business, or other condition affecting their conduct, was such that ordinary prudence allowed or required them to ship the raisins to the East. That matter is not for decision now.

4. In the fifth count of the cross complaint, defendant alleged that he sold and delivered to Williams, Brown & Co. "eighty-six thousand eight hundred and forty-four pounds of Valencia raisins," at the price of three and one-half cents per pound, and that they yet owe him for the same a balance of $1,243.03. At the trial these allegations were strongly contested. Defendant was allowed to testify that about October 1, 1893, Williams, Brown & Co. agreed with him orally to buy the said Valencia raisins at the price alleged; appellants objecting that the effect of the evidence is to vary by parol the terms of the written contract of August 31st. At the outset of his testimony, defendant stated that "under the contract"-referring to the instrument of August 31st-he delivered to Williams, Brown & Co. all his raisins, including the Valencias; and although, when he came to testify concerning the alleged oral agreement of October 1st, he said that the "written contract referred to ordinary raisins; the oral one to dipped raisins, called 'Valencias,'"-yet it is clear that the Valencia raisins were made from the grapes which were the subject of the writing. The instrument required defendant to cure and deliver to Williams, Brown & Co., on the terms stated therein, "all grapes and raisins" grown and produced during that season on his vineyard. Defendant stated, in effect, that he made and delivered the Valencia raisins to Williams, Brown & Co. on their oral promise to pay 3 cents per pound for five carloads of them. His counsel argue that this is "an executed parol agreement," and therefore that evidence thereof is admissible to alter the previous writing. Civ. Code, § 1698. We do not think so. We find no evidence that Williams, Brown & Co. ever paid

anything as on a purchase by them of the Valencias; and, as concerns Hodgkin, so far as appears, he did nothing under the alleged oral agreement which he was not bound to do in the proper fulfillment of the written contract. There was no evidence that curing raisins by the Valencia process, and delivering the same when cured, was not the due and reasonable performance of his prior written promise to "cure and deliver" his entire crop. Obviously, the executed oral agreement, which may be proved for the purpose of altering a previous written contract, must consist in the doing or the suffering of something not required to be done or suffered by the terms of the writing. See Civ. Code, §§ 1661, 1595, 1605; Pol. Cont. pp. 161, 162; Vanderbilt v. Schreyer, 91 N. Y. 392. True, the defendant here testified that he sold the Valencia raisins, but the alleged sale rests in mere spoken words, which in themselves could not be allowed to alter the writing. His acts towards the execution of any contract were only such, so far as proved, as the original agreement required him to perform. A written instrument would afford but slight protection to the parties in such cases, if it could be varied in this manner. A bailment could be converted into a sale, or a sale into a bailment, according as the interests of either party, after delivery of the goods, might lead him to the belief, real or feigned, that the delivery had not been pursuant to the original writing, but under a subsequent oral arrangement.

5. There was evidence that about October 1, 1893, the said association of growers and packers abandoned their agreed schedule of prices, the members selling thereafter at what rates they pleased; and appellants requested the court to charge the jury that if, before any sale of defendant's raisins by Williams, Brown & Co., the prices had been changed by the association, and the association had no fixed prices at the time of any of such sales, then Williams, Brown & Co. were "relieved from any obligation to sell for any association prices which were fixed at the time of the entering into the contract." The instruction was rightly refused. If the association had, in the course of the season, fixed prices different from those first agreed on, it may be that such modification should have been read into the clause of the contract reterred to in the instruction. But no other prices were subsequently fixed. The members of the association simply abandoned the rates first agreed on, and we think their action in that particular did not release Williams, Brown & Co. from their promise to obtain the rates which had been fixed, or, as the alternative, to consult defendant before accepting lower prices. The collapse of the association would seem to furnish a reason why defendant should have desired to be consulted regarding prices of subsequent sales, for the natural tendency of that event was to increase the degree of caution necessary to be

exercised by individual sellers. There is in the record, moreover, evidence tending in some measure to show that Williams, Brown & Co. did not regard this clause of the contract as nullified by the failure of the association to maintain the agreed prices. Thus, on October 26, 1893, they wrote to Hodgkin, saying that up to that time they had "had no difficulty whatsoever in getting the prices fixed by the combination"; and as late as April, 1894, they wrote to him, inquiring whether they should accept a specified offer for certain of his raisins they had then in New York,-an offer apparently less than the original association price.

No material error is brought to our attention, except the admission of evidence touching the alleged sale of Valencia raisins to Williams, Brown & Co.; but because of that the judgment is reversed, and a new trial ordered.

(9 Kan. A. 776)

SHADDUCK et al. v. STOTTS. (Court of Appeals of Kansas, Southern Department, W. D. Nov. 21, 1899.) REPLEVIN-GENERAL DENIAL-DEFENSES

APPEAL-REVIEW.

1. In a replevin action, under a general denial, the defendant may prove any defense that he may have.

2. Cases are reviewed in this court upon the theory upon which they were tried in the district court, and a theory of defense that was not presented at the trial will not be reviewed by the court of appeals.

3. Where a question of fact is presented to a jury upon proper instructions, and the evidence is conflicting, the finding will not be disturbed. 4. The evidence examined. Held incompetent, but not prejudicial.

(Syllabus by the Court.)

Error from district court, Reno county; F. L. Martin, Judge.

Action by R. B. and M. L. Shadduck against E. Stotts. Judgment for defendant, and plaintiffs bring error. Affirmed.

W. H. Lewis and D. W. Dunnett, for plaintiffs in error. R. J. Cannell, H. Fierce, and Prigg & Williams, for defendant in error.

SCHOONOVER, J. This action was commenced by plaintiffs in error to reverse a judgment rendered against them in the district court of Reno county in favor of the de fendant in error, E. Stotts, administrator of the estate of Heber Jones, deceased. On January 17, 1896, Heber Jones was in possession of the personal property (hotel furniture) involved in this action. R. Bradbridge held a chattel mortgage on the property to secure $200, the payment of which Heber Jones assumed. Bradbridge commenced an action in the district court of Reno county to recover the possession of the goods. An order of replevin was issued, and the sheriff took the property into his possession. A redelivery bond was given. Plaintiffs in error signed the bond as sureties for Heber Jones. Before

the plaintiffs in error would sign the redeliv ery bond they required, and Heber Jones did, on the 17th day of January, 1896, execute and deliver to Martha L. Shadduck, a bill of sale on the property in question. The property was returned to Jones, and he remained in possession of it until the 17th day of April, 1896, when he died, without having paid the mortgage notes. R. B. Shadduck, agent of Martha L. Shadduck, took possession of the goods, claiming that she was the owner by virtue of the bill of sale. The defendant in error, as administrator of the estate of Heber Jones, demanded the possession of the property, stating that he was prepared to pay off the indebtedness against it. All the evidence considered, a sufficient tender by the administrator of the amount for which Mrs. Shadduck was liable upon the redelivery bond was made.

The defense in the trial court was based on the theory that the bill of sale was an absolute conveyance. Plaintiffs in error in their brief now present the same and a further defense, but no defense not fairly presented in the trial court will be considered by this court on review.

The vital question, aside from the possession of the property in controversy, presented in the court below, was, what was intended by the parties? Was the bill of sale an absolute conveyance of the property, or was it intended as a mortgage or contract for indemnity, for the purpose of saving the plaintiffs in error from loss by reason of signing the redelivery bond? Upon this point there was conflicting testimony. The jury found in favor of the plaintiffs below, which, upon the hearing of the motion for a new trial, was approved by the trial court. The judgment will not be disturbed. Beal v. Codding, 32 Kan. 107, 4 Pac. 180; Railway Co. v. Diehl, 33 Kan. 422, 6 Pac. 566; State v. Dorsey, 37 Kan. 228, 15 Pac. 240.

The evidence and instructions complained of have been considered. The instructions

present the law applicable to the facts. The evidence may be considered incompetent, but it is not so prejudicial as to compel a reversal. Upon the defense, as presented to the trial court, the plaintiffs in error had a fair trial. Counsel for plaintiffs in error has presented his theory of the case to this court in an able oral argument and in a well-prepared brief, but the errors now contended for will not justify a reversal of the case as tried and determined in the court below. The judgment of the district court will be affirmed.

(9 Kan. A. 186)

CHASE v. BANK OF HORTON. (Court of Appeals of Kansas, Northern Department, E. D. Nov. 20, 1899.)1 CORPORATIONS-LIABILITY OF STOCKHOLD. ERS- ENFORCEMENT -NEW TRIAL FIND INGS.

1. A right of action in favor of a creditor of a corporation, against a stockholder thereof, to enRehearing denied January 6, 1900.

force the constitutional liability of such stockholder, accrues only upon the dissolution of the corporation as provided by section 49, c. 66, Gen. St. 1897. Suspension of business for more than one year is equivalent to dissolution, for such purpose, under the provisions of section 45 of said chapter. The statute of limitations does not begin to run against such action until such dissolution, or the occurring of such facts as are equivalent thereto.

2. Where the findings of a jury upon an issue material to the decision of a case are wholly irreconcilable, a general verdict should be set aside, and a new trial awarded. It is not necessary, to maintain an action under the provisions of section 49, that a creditor's claim should be reduced to judgment. Proof that the corporation is indebted to the plaintiff is all that is required. (Syllabus by the Court.)

Error from district court, Brown county; R. M. Emery, Judge.

Action by the Bank of Horton against L. K. Chase. Judgment for plaintiff, and defendant brings error. Reversed.

Jas. Falloon, for plaintiff in error. Ryan, Davis & Reeder, for defendant in error.

MAHAN, P. J. This was an action by the Bank of Horton to charge Chase as a stockholder in the Willis Grain & Mill Company, a corporation. There was a judgment for the bank, and Chase prosecutes this proceeding in error to reverse that judgment, and contends that the court erred in three particulars:

1. In not holding that the action was barred by the statute of limitations. It is contended under this assignment that a cause of action accrues to the debtor of a corporation against a stockholder at the time the corporation ceases to do business. In this we are clearly of the opinion that counsel are mistaken. The liability is purely statutory, and the circumstances under which it can be maintained are prescribed by the statute. A creditor of a corporation may sue a stockholder directly, as in this case, when the corporation is dissolved. The statute further provides when and how a corporation is dissolved for the purpose of enabling such suit to be brought. In this case the action did not accrue to the bank until one year after the Willis Grain & Mill Company ceased to do business. The statute does not provide that a resolution of the stockholders can create such a dissolution as to enable a suit to be brought. It is not one of the conditions specified in the statute. The statute of limitation begins to run either at the time of the dissolution by expiration of its charter or a judgment of dissolution, or at the end of one year from the time it ceased to perform the functions of a corporation.

2. The next assignment of error is that the court refused to allow the plaintiff in error a credit for money paid by him on account of an obligation of the grain and mill company. Upon this question of the right of the defendant to this credit the special findings of the jury are conflicting. In two of the findings they say that the corpo

ration did not assume, for a valuable consideration, the payment of the debt which Chase claims he paid for it. The note evidencing the debt was signed by the co-partnership prior to its incorporation. In another finding they say that, after the makers of the note incorporated themselves into a company, the company took the property, and assumed the obligations of the prior co-partnership. So the findings are irreconcilable. The jury seem to have been misled by one of the court's instructions to the effect (though not exactly in express terms) that, in addition to the taking of the property of the copartnership, there must be an express consideration for the assumption of the debt. If the assumption of the debt by the corporation was a part of the entire transaction by which the corporation acquired the co-partnership property, no additional consideration was necessary to sustain the contract of assumption. In such cases the supreme court has held that a new trial must be awarded.

3. The next contention is with respect to the judgment which was offered as evidence of the indebtedness of the grain and mill corporation to the bank. There was sufficient evidence to establish the fact that the grain and mill company did owe the bank in an amount greater than any possible obligation of Chase as a stockholder. It was not necessary that it should be reduced to judgment, as it is under the other section of the statute, providing for execution against the stockholder thereon in case execution against the corporation is returned unsatisfied. Any legal evidence, uncontradicted, sufficient to establish prima facie a debt, is all that the statute requires. The judgment will be reversed, and the case remanded, with directions to the district court to award defendant a new trial.

MCELROY, J., concurs.

WELLS, J. (dissenting). I concur in the correctness of the syllabus, as propositions of law, but dissent from the judgment rendered.

(9 Kan. A. 772)

WEINER V. BALDWIN.

(Court of Appeals of Kansas, Southern Department, W. D. Nov. 21, 1899.)

ACTION ON LEASE-INSTRUCTIONS. The instructions complained of set forth. Held, under the facts, that they are not misleading, and fairly present the law applicable to the facts and the issue submitted.

(Syllabus by the Court.)

Error from district court, Reno county; F. L. Martin, Judge.

Action by Jennie Baldwin against J. D. Weiner. Judgment for plaintiff. Defendant brings error. Affirmed.

C. M. Williams, for plaintiff in error. H. Whiteside, for defendant in error.

chasers of the said stock of merchandise therein contained. (3) The plaintiff files a reply denying all of the allegations of the answers. (4) I instruct you, gentlemen of the jury, that the burden of proof in this case is upon the defendant, and that the plaintiff is entitled to recover the amount prayed for in her petition, unless you find from a preponderance of the evidence that the defense has proven that it was mutually agreed between plaintiff and defendant that the defendant's lease should be surrendered. (5) The agreement to surrender the lease need not be in writing, and the contract to surrender must be shown by the defendant to have been made, either in express terms, or to be implied from the facts and circumstances and dealings between the plaintiff and defendant, and to the other parties to whom the defend

SCHOONOVER, J. This action was commenced by Jennie Baldwin, defendant in error, in the district court of Reno county, against J. D. Weiner, plaintiff in error, upon a written lease, to recover rent alleged to be due for a certain building in the city of Hutchinson. The defendant below brings the case here. The errors presented in the brief are that, under the facts of the case, the court erred in its declarations of law in the sixth, eighth, ninth, tenth, and eleventh instructions to the jury. That the facts may appear, the instructions complained of, and separate paragraphs that are not objected to, are set forth. They are as follows: "Instructions to the Jury. (1) The plaintiff claims judgment for five hundred twenty-five ($525) dollars, with interest thereon at six per cent. from the time when the several months' payments became due to this date. This judgment she claims.ant transferred the possession of the premby virtue of a written lease which has been introduced in evidence, and which is before the jury. (2) The defendant admits the execution of the lease as alleged by the plaintiff, and for his defense says that he occupied the premises described in the lease until January 1, 1893, at which date, by and with the consent of the plaintiff, he sold his business and the merchandise contained in said building to the Docherty Dry-Goods Company, with his interest in and to said lease, and delivered possession of the said premises and said stock of merchandise and said lease to the Docherty Dry-Goods Company; that the said dry-goods company, by and with the consent of the plaintiff, took possession and control of the premises under and by virtue of said lease, and occupied the same up until the month of February, 1894; that during all of said time plaintiff recognized and acknowledged the said Docherty Dry-Goods Company as her tenant, and collected rent for the occupancy of said premises from the said Docherty DryGoods Company, and never after the said 1st day of January, 1893, requested and demanded of this defendant the payment of rent, and refused to in any manner recognize the defendant as her tenant. The answer also alleges that the merchandise of the Docherty Dry-Goods Company was sold under a chattel mortgage, and that plaintiff permitted it to remain in the building for a long time thereafter, and demanded and received rent from the occupant thereof, and the defendant says that since January 1, 1893, he did not occupy or control said premises, nor have any interest of any kind or character therein, or the business that was conducted therein; the plaintiff never demanded any rent after the said date, but relied wholly upon the occupant of the premises from said date to the expiration of the lease for the payment of the rent of the same. And the defendant further says that the plaintiff verbally consented and promised to defendant that she would release him from liability under said lease, in consideration of defendant permitting said premises to be occupied by the said purchaser or pur

ises. (6) The lessee cannot surrender premises leased to him, before the expiration of the term, so as to absolve himself from the payment of rent thereafter, without the consent of the lessor. The abandonment of the premises, with notice to the lessor, will not exonerate him thereafter from his obligation to pay rent, unless the lessor consents thereto. (7) I instruct you that the restriction in the written lease in evidence against subletting is for the lessor, and may be waived; that, if the defendant put in an undertenant, the underletting is not void, but only voidable, and if the plaintiff does not at once, on knowledge, and in a reasonable time, declare the lease void in consequence, or assent to its surrender, it is still binding in every other respect on the first lessee, and the landlord can sue him for nonpayment of rent and recover. (8) The fact that the plaintiff in the case did not object to the defendant transferring the possession of the building to the Docherty Dry-Goods Company, or the mere fact that she expressed herself with being pleased with the change of the store, and the mere fact that she subsequently accepted the payments of rents due according to the terms of the lease with the defendant, are not conclusive evidence, and are not sufficient, standing alone, to estop her from denying that she consented to the surrender of the lease. (9) On the other hand, if you find that the defendant has shown by a preponderance of the evidence that the plaintiff expressly consented to the defendant transferring the possession of the building to the Docherty DryGoods Company because she preferred that company as a tenant to the defendant, or find by a preponderance of the evidence that the defendant surrendered the possession of the store to the Docherty Dry-Goods Company, and that the plaintiff made a new contract of lease with the said Docherty Dry-Goods Company, or with the successors of the Docherty Dry-Goods Company, or any one of them, and that the said Docherty Dry-Goods Company, or any of its successors, took possession of the said premises, and paid rent to the said

plaintiff, under and by virtue of such new contract or lease, this will estop the plaintiff from now denying the surrender of the first lease. (10) I instruct you further that if the evidence shows that defendant sold his stock, and put Docherty & Co. in possession of the premises, with no agreement, definite and mutual, with Docherty & Co., in writing, to assume all of his obligations in the lease, and for the full term thereof, and that there was no assignment of the lease to Docherty & Co. and their successors, and, in that event, the Docherty Dry-Goods Company were undertenants of defendant, unless you find, as heretofore instructed, that the defendant surrendered the lease with the consent of the plaintiff. This instruction also applies to the assignment of the lease to Docherty, Kramer & Co., or Martin & Co. (11) If you find that the plaintiff has failed to show by a preponderance of the evidence that defendant consented to the surrender of the lease in accordance with those instructions, I instruct you that it is immaterial whether she made any attempt to lease the building when it became vacant and unoccupied or not."

The facts stated in the instructions clearly appear from the record. The instructions, construed as a complete whole, are not misleading, and fairly present the issue. No re quest for special instructions was made. The evidence was conflicting. The case was tried to a jury, and the verdict was for plaintiff, From which was approved by the trial court. a consideration of the entire record, we find no error in the instructions that would compel a reversal. The judgment of the district court is affirmed.

BULL v. DUNCAN et al. (Court of Appeals of Kansas. Northern Department, C. D. Nov. 24, 1899.) AGENT'S AUTHORITY-EVIDENCE. The existence of an agent's authority to receive payment of notes may be inferred from the mutual conduct and relation of the parties, or from the general nature of the transactions in which they are concerned and the circumstances surrounding them.

Error from district court, Marshall county; W. S. Glass, Judge.

Action by Charles R. Bull against Sarah A. Duncan and another to recover on notes. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

J. H. Broughten, for plaintiff in error. Strong & Scoville, for defendants in error.

PER CURIAM. The only substantial question in this case is, did the evidence justify the court in finding that Yurann was the agent of the plaintiff in error in receiving payments upon the notes sued on? If the agency existed, then the acts of the agent became the acts of the principal, and there was no error in admitting evidence in relation thereto. As to the fact of the existence

of the agency, the evidence is exceedingly meager, and is expressly denied by the plaintiff; but, as was said by this court in Hall v. Smith, 3 Kan. App. 688, 44 Pac. 909: "It is not essential that it be proven by any formal written instrument, nor even by a special oral contract. It may be inferred from the mutual conduct and relation of the parties, or from the general nature of the transactions in which they were concerned and the circumstances surrounding them." We cannot say that there was such an entire lack of any evidence to sustain the finding of the court as would warrant us in setting it aside. The judgment of the district court is affirmed.

(9 Kan. A. 770)

GARFIELD TP. v. THEIS. (Court of Appeals of Kansas, Southern Department, W. D. Nov. 21, 1899.) ERROR-SERVICE OF SUMMONS.

In proceedings in error, service of summons in error may be made upon the defendant in error or upon his attorney of record in the original case; but such service must be made as in the commencement of an action, by delivering a copy of the summons in error to the defendant in error or his attorney of record personally, or by leaving one at the usual place of residence of the parties served.

(Syllabus by the Court.)

.

Error from district court, Finney county; William Easton Hutchison, Judge.

Action between Garfield township, a mчnicipal township of Finney county, Kan., and George Theis, Jr. From the judgment, the township brings error. Dismissed.

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

SCHOONOVER, J. Consideration of this case is challenged by motion to dismiss, for the reason that the summons in error was not served as required by law. A summons in error was issued and served upon the defendant in error by reading it to him. No copy of the summons was left with him, and no waiver of summons or entry of general appearance has been made. Upon the hearing of the case, the plaintiff in error attempts to cure the defect by filling the following affidavit:

"[Omitting title.] Application and Affidavit to Supplement the Sheriff's Return upon the Summons in Error. Comes now Mike Shrugrue, sheriff of Clark county, in the state of Kansas, and, being first duly sworn, deposes and says that he is now, and has been for more that one year last past, the duly elected, qualified, and acting sheriff of Clark county, Kan., and that he is the sheriff that served the summons in error in the above-entitled action upon the above-named defendant in error, George Theis, Jr., and that he served said writ upon said Theis by reading said summons in error to said Theis, as shown by his original return on said writ;

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