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and the affiant further shows that at the replevin, and one for conversion,—the subtime of the service aforesaid, after the affi- ject-matter of all of which was a number ant had read said writ to said Theis, that the of promissory notes belonging originally to said Theis then and there took said writ into D. J. Fair & Co., a partnership composed of his own hands, and read it, and returned it to D. J. Fair and George M, Schurr. They were the affiant, without demanding a copy thereof; conducting a lumber and grain business at that subsequently when this affiant's attention Abbyville, Kan., for about three years prior was called to the fact that he had not given to February 20, 1895, at which date the partsaid Theis a copy of the writ, that affiant nership was dissolved by mutual consent; spoke to said Theis about it, and he, the said Fair remaining in control of the business, and Theis, said he would fix it up, or fix it all succeeding to the ownership of all the propright, or words to that effect; and further erty of the firm, including its notes and affiant saith not. So help me God. Mike accounts. While the partnership existed, Shrugrue.

Schurr had the entire management of its af"Subscribed and sworn to before me at fairs, and prior to its formation he managed my office in Ashland, in Clark county, Kansas, the business at that place for Fair. It seems this 27th day of September, A. D. 1899. My to have been understood between the partcommission expires October 4, 1902. J. M. ners that the banking transactions of the Grasham, Notary Public."

firm should be with the Valley State Bank This is not sufficient to give this court ju- of Hutchinson. In 1892 and 1893, and after risdiction. Section 13, c. 83, 2 Gen. St. 1897, the partnership was formed, Schurr borrowed requires a summons in error to be served various sums from the defendant in error, giv"as in the commencement of an action.” The ing his individual notes therefor. At such statute regarding the service of the summons times he stated that the money was "needed in the commencement of the action (section to tide over collections," or "needed in the 63, c. 95, Id.) requires service to me made “by business." Checks for the proceeds of two delivering a copy of the summons to the de- of these notes were deposited by Schurr in fendant personally, or by leaving one at his the Valley State Bank to the credit of D. J. usual place of residence." Section 13, c. 83, Fair & Co., and such checks were thereafter Id., provides that "service on the attorney returned to the Arlington bank. In August, of record in the original action shall be suf- 1892, the defendant in error, by its president, ficient,” but it must be in the manner pre- deposited with Schurr, at Abbyville, $200 in scribed by section 63, supra. The objection currency, to be used in cashing checks at that is technical, but the law is explicit, and we place for the convenience of the bank's cusmust follow it. More than 60 days in excess tomers; Schurr giving his demand note thereof one year having elapsed since the rendi- for, as a memorandum of the transaction. tion of the judgment of the district court, it Four months later the bank's president, obis now too late for this court to acquire ju- serving that the money was not being called risdiction over the objection of the defendant for as anticipated, proposed to take it up and in error. The motion to dismiss is sustained. surrender the demand note. Schurr then said

to him: “We have used that in our busi(9 Kan. App. 779)

ness,--We have bought wheat with it,-and

propose to pay interest on it as a loan from FAIR 7. CITIZENS' STATE BANK OF

that date.” It was so arranged, and the ARLINGTON.

bank retained the note. Renewals of the (Court of Appeals of Kansas, Southern Depart

notes and partial payments thereon followed ment, W. D. Nov. 21, 1899.)

until in March, 1894, when Schurr, representPARTNERSHIP LIABILITY-NOTE OF INDIVIDUAL PARTNER.

ing that the firm needed $400 with which to While negotiable paper made in the name pay for wheat theretofore stored with it, beof one partner, when his name is not also that gan the transactions whereby the notes in of the firm, is not ordinarily binding upon the

controversy were given as collateral security partnership, yet such paper, taken when the obligation was incurred by the partnership, and

to the individual notes of Schurr for loans upon its credit, will be regarded as merely col- made by the bank. The evidence on behalf lateral, and the other partners will be held lia- of the plaintiff tended to prove that he had ble upon the original consideration.

no knowledge whatever respecting the trans(Syllabus by the Court.)

actions whereby such notes were indorsed by Error from district court, Reno county; Schurr and delivered as collateral security to F. L. Martin, Judge.

the defendant bank. On the part of the deActions by D. J. Fair against the Citizens' fendant the evidence tended to prove that State Bank of Arlington. Actions consoli- such transactions were always regarded by dated. Judgments for defendant. Plaintiff

the bank officers as transactions with the brings error. Affirmed.

firm of D. J. Fair & Co., and that the loans C. M. Williams, for plaintiff in error. H. were made upon the credit of the firm, and Whiteside, for defendant in error.

for its use and benefit, and that in fact a

great part, if not all, of the proceeds of the MILTON, J. The record presents three loans made to Schurr at the times the colcases, which were tried as one in the district lateral notes were delivered, were used in court of Revo county,-two being actions in partnership business. At the times the actions were commenced the defendant bank its credit, or whether the sole credit was held a note of Schurr for $647, with certain given to Schurr. The important question is notes of D, J. Fair & Co. as collateral there- not who gave the note, but, rather, who creto; and it had during the preceding year col- ated the debt; that is, the real nature of the lected some of the collateral notes deposited contract of indebtedness, of which Scburr's with it at various times by Schurr, and had note is an evidence. Such questions are set applied the proceeds upon his notes. There at rest by the general finding of the jury. was no direct evidence of fraudulent conduct The plaintiff in error contends that the folon the part of Schurr in respect to the part- lowing proposition of law governs in this nership affairs. The court instructed the jury case: “Negotiable paper made in the name at great length, covering fully all features of of one partner, when his name is not also the controversy, and refused to give any of that of the firm, is not, as a general rule, the instructions asked for by the plaintiff or binding upon the partnership." 17 Am. & the defendant. The trial court's theory is Eng. Enc. Law, 1027. This rule is supported well expressed in the following instructions by many authorities which are cited in the given to the jury: "The jury are instructed notes, but it is too narrow to cover the facts further that if you find from the evidence presented by the record before us. The rule that Schurr was general manager and a part- contended for was sufficiently embodied in ner of the firm of D. J. Fair & Co., and as the instructions given, but the court (as we such charged with the duties of raising money think, properly) also embraced in its instrucfor the firm and paying debts, and went to tions the proposition which is thus stated on defendant and represented that he wanted to page 1029 of the same volume: “Individual borrow money to assist collections of the paper of one partner, taken when the obligafirm, or to buy property for the firm, or to tion was incurred by the partnership, or upon refund money of other persons used by the its credit, will be regarded as merely collaterfirm, or pay the firm debts, and for the pur- al, and the other partners will be held liable pose of borrowing the money offered his indi- upon the original consideration." The same vidual note, with collateral security, the last doctrine is thus stated by Bates: "Where the payable to the firm, duly indorsed by the individual paper of one partner is taken, yet firm, and the bank, on the strength of his if the sale was made to, and upon the credit said note and the said collateral, loaned the of, the firm, the other partners will be liable money in good faith, believing it was to be for the original consideration, as for money used for such partnership purposes, in that lent or goods sold, although they are not liaevent the plaintiff cannot recover the posses- ble upon the paper, which is merely collatsion or value of any of the collateral notes so eral." Bates, Partn. $ 440. In the case of transferred until the entire debt evidenced Hoeflinger v. Wells, 47 Wis. 628, 3 X. W. by the individual note of Schurr is paid, re- 589, the trial court sustained a general de gardless of the fact whether the said money murrer to the plaintiff's complaint, wherein so loaned was used in the partnership busi- it was alleged that one Stafford borrowed ness or not, and regardless of the state of from the plaintiff, on account of and for the his account with the firm, and regardless of use of the firm of which he was a member, whether the representations were true or a certain sum of money, and that such loan false.” Separate verdicts were returned in was evidenced by Stafford's individual note, each case for the defendant, and judgment and that the money so borrowed was expended was entered accordingly.

for the use of the firm. The supreme court The verdict and judgment, being based on reversed the order of the trial court sustainconflicting evidence, must stand, unless it ap- ing the demurrer, and in its opinion said: pears that the court erred in the admission "In our view of the construction which must or the exclusion of testimony, or in giving or be given to the allegation as to the borrowrefusing to give instructions. The verdicts ing of the money, the giving of the individual are equivalent to findings that the money was note of one of the partners for the money borrowed by Schurr from the bank for the borrowed by the firm would be no bar to a firm of D. J. Fair & Co., upon the firm's credit, recovery against the firm after the note be and that it was loaned to the firm, upon the came due and remained unpaid. If upon the firm's credit, by the bank. It follows tbat trial the plaintiff can show that the money that the debt evidenced by the note of Schurr was borrowed for the firm, that he was at was a firm debt. The present action is not the time advised that it was for the firm, upon such note, and it was clearly competent and that he loaned it to the firm and upon for the bank to defend against the plaintiff's its credit,-and, as we construe the allegaaction by showing the real nature of the tions of the complaint, they are sufficient to transactions upon which it relied as a defense. admit such evidence,-then the mere taking Prima facie, Schurr's note bound himself as of the individual note of the one partner for an individual only, while in fact, as found by the money so loaned will not defeat the acthe jury, the transactions wherein he gave

tion. The taking of such note may be evihis note bound the firm of Fair & Co. It dence tending to show that the money was was for the jury to determine, under proper not loaned to the firm, and that the sole Instructions, whether the money was bor- credit was given to Stafford, but it is not rowed by and loaned to the firm, and upon conclusive of that fact; and if the jury or

the court should find as a fact that the ment for the defendant. There is a conflict money was borrowed by and loaned to the in the testimony as to the terms of the confirm, and upon its credit, then the taking of tract under which the defendant left with the the individual note of one member of the plaintiff his property for sale. The defendant firm would not be a payment of such firm testified that plaintiff's authority to sell redebt, unless it was affirmatively shown that quired, and his commission depended upon, such note was taken in payment of the an immediate sale, which he failed to effect, same,"—citing numerous supporting decisions. while plaintiff swears that no time limita

Complaint is made of the court's refusal tion was imposed. Upon the presumption, in to permit the plaintiff to testify that D. J. which we are entitled to indulge, that the Fair & Co., as a firm, had no business trans- trial court found in favor of defendant's conactions with the Bank of Arlington, and that tention concerning the terms of the contract, he, as one of the partners, never authorized we would be justified in affirming the judgSchurr to transact business of any kind in the ment on the sole ground that, in a substantial name of or for the firm with that bank, and conflict of the testimony, we are precluded by that he had no knowledge of the fact that the finding below. But, upon the testimony Schurr had borrowed money of the defendant of the plaintiff alone, we think he is not enin the name of the firm, or had transferred titled to recover. The case is not one where any of the firm notes to the bank. An exam- property has been left for sale by its owner ination of the record indicates that the plain- exclusively with one agent. On the contrary, tiff actually testified concerning the matters the defendant openly, and with the knowljust stated, and we think that no substantial edge of plaintiff, left the property for sale error was committed in the respect named. with several different agents. Plaintiff was

Plaintiff in error also claims that the court not able to effect a sale with the customer erred in permitting the witness Schurr to an- with whom he negotiated, and did not report swer a question as to whether or not a state- to his principal the result of his efforts; and ment made by the preceding witness concern- his subsequent conduct in showing to this ing certain transactions was substantially customer other and cheaper property indicates correct. We think the question was improper, that he abandoned his efforts to sell defendand that the court should not have permit- / ant's property. About two months after plainted it to be answered over the objection of the tiff had ineffectually made the foregoing atplaintiff; but, as the witness thereafter tes- tempt, another agent of the defendant, who tified fully concerning the transactions refer- was authorized to sell, through his own efred to in the question, it does not appear that forts in that behalf succeeded in selling to the the plaintiff was harmed by the error. The

same purchaser. The case was one where judgment of the district court will be af- rival agents were authorized to sell, and firmed.

where one produced a customer to whom the sale was made, and with whom the rival

agent could not succeed. The defendant was (26 Colo. 547)

under obligation to pay the agent who proCARPER v. SWEET.

duced the purchaser to him; for this agent, (Supreme Court of Colorado. Nov. 9, 1899.) and not the other, was the efficient and imBROKERS-COMPENSATION-CONTRACT-RE

mediate cause of the sale. There is not a VIEW-FINDINGS OF FACT.

word of evidence that the defendant inter1. A finding of fact as to the terms of a con- fered as between the two agents, while it tract under which the principal left with an abundantly appears that he remained entirely agent his property for sale, made on conflicting evidence, is conclusive on appeal.

neutral, and in fact did not know that the 2. Where an owner openly places his property plaintiff had ever talked with the purchaser in the hands of rival agents for sale, and one until the sale by the rival agent had been acmakes the sale to a customer with whom the

complished. Then it was that the plaintiff other had first, but unsuccessfully, negotiated, the owner is not liable to the latter for com

claimed a commission on the ground that the missions.

sale had been made to one with whom he Error to Arapahoe county court.

had first, but unsuccessfully, negotiated. At Action by Frisbee D. Carper against Wil

that time the deal had been consummated, liam E. Sweet. Judgment for defendant.

and nothing remained to be done, except the Plaintiff brings error. Affirmed.

delivery of the deed to the purchaser, and

the receipt of the purchase money by the A, B. Seaman and H. S. Silverstein, for

owner. The case comes squarely within the plaintiff in error. James H. Pershing, for de- rule recognized in Scott v. Lloyd, 19 Colo. fendant in error.

401, 35 Pac. 733,-that, where the principal

has openly placed his property in the hands CAMPBELL, C. J. This is an action by a of different agents for sale, he may pay the real-estate agent to recover from his princi- commissions to the one who produces the pal commissions for the sale of the latter's purchaser, and be relieved from any liability real estate. The trial buiow was before the to the others. The judgment should be afcourt without a jury, and resulted in a judg- firmed, and it is so ordered. Affirmed.

OF

OF

(26 Colo. 549)

would be held liable therefor. In October, DAVIDSON et al. v. BOARD OF COM'RS OF 1892, the county delivered to the bank, in LA PLATA COUNTY.

satisfaction of the judgment, certain of its (Supreme Court of Colorado. Nov. 9, 1899.) bonds, which were sold by the bank, which ATTORNEY AND CLIENT-ATTORNEY'S LIEN- applied the proceeds on Shields' indebtedness. ASSIGNMENT JUDGMENT NOTICE On the 14th of February, 1893, the plaintiffs LIEN-ENFORCEMENT OF LIEN-RES ADJUDICATA.

brought an action in the county court of La 1. The decision of the court of appeals on a Plata county to enforce their lien, naming former appeal is not the law of the case, on a as defendants M. R. Shields and the Colorado subsequent appeal to the supreme court. 2. The decision of the court of appeals on a

State Bank of Durango. Judgment went former appeal is not res adjudicata, on a subse

against plaintiffs, and they appealed to the quent appeal to the supreme court, where the district court of the same county, where, evidence before that court was not the same as

after filing an amended complaint naming the evidence before the supreme court. 3. Where an attorney, acting for a bank, in

as defendants M. R. Shields, who was not taking an assignment of a judgment reads a no- served with process, the board of county comtice of an attorney's lien, entered on the record, missioners of La Plata county, which apbefore taking the assignment, the bank has notice of plaintiff's intention to enforce the lien.

peared, but filed no answer, and the Colorado 4. Where the judgment debtor and the as

State Bank of Durango, which filed an ansignee of a judgment had notice of an attor- swer, a trial was had on the issues joined ney's lien against the judgment before the as- under the amended complaint and this ansignment was made, both are liable for the

swer, resulting in a decree in favor of the amount of the lien.

5. Where the judgment debtor and the as- plaintiffs, adjudging the amount of their signee of a judgment are both liable on an at- claim a lien upon the judgment, and ordertorney's lien against the judgment, the plaintiff may elect as to whether he shall seek a single

ing the bank to account for and pay the same satisfaction of both or one, and, if so, which one,

to the plaintiffs. The bank appealed to the of the defendants.

court of appeals, and the judgment was reError to La Plata county court.

versed, the opinion of the court appearing in Action by W. C. Davidson and others

7 Colo. App. 91, 42 Pac. 687. The opinion against the board of county commissioners of

discloses that, in the judgment of that tri

bunal, there was no evidence that the board La Plata county. Judgment for defendant,

of commissioners received any notice, or had and plaintiffs bring error. Reversed.

any knowledge, of the plaintiffs' intention to N. C. Miller, for plaintiffs in error. Willis

resort to the judgment for a satisfaction of A. Reese and 0. S. Galbreath, for defendant the lien, until service of summons upon them; in error.

and it further appeared from the evidence

that the bank took its assignment of the CAMPBELL, C. J. This is an action to en- judgment without any notice or knowledge force an attorney's liens upon a judgment. On of the plaintiffs' claim, and that the board April 11, 1892, in the district court of La paid to the bank the amount of the judgment Plata county, M. R. Shields, as plaintiff, re- in good faith and in ignorance of plaintiffs' covered a judgment against the board of claim. Plaintiffs, therefore, according to the county commissioners of La Plata county for opinion, having lost their lien against the $5,266.38. The plaintiffs here were the at- judgment debtor (the county), and their lien torneys for Shields in that action, and it is being subordinate to that of the bank, the for the fees earned by them in prosecuting decree was reversed. The court, as a mat. the same that the attorney's lien is claimed. ter of law, however, held that, if there was On the 12th of May of the same year they a surplus of the judgment after the bank's filed in the office of the clerk of the district claim was liquidated, plaintiffs might have a court a notice of their claim of lien, and on lien thereupon; but as Shields was not served the next day caused to be entered in the with process, and did not voluntarily apmargin of the record of the judgment a pear, no judgment was, and none could have notice of their intention to rely on the same. been, rendered against him upon which the Afterwards, and on the same day, Shields, bank's liability depended, but which, in any the judgment debtor, by a writing in the event, would not attach, unless the amount same margin, assigned the judgment, as col- of plaintiffs' lien first established lateral security, to the Colorado State Bank against Shields. The case was therefore reof Durango, for a debt he owed it; and the manded, with leave to the plaintiffs to amend attorney of the bank, who acted for it in their complaint to make Shields a party. taking the assignment, read this notice of After the cause was remanded to the district plaintiffs before the assignment was made. court, the plaintiff's, instead of amending as On the 26th of that month, plaintiffs filed suggested, dismissed the action without prejwith the county clerk of the county a no- udice, and then, after first establishing the tice, addressed to the board of county com- amount of their claim as a judgment against missioners, in which they claimed a lien upon the estate of Shields (Shields in the meanthe judgment for their services, and admon- time having died), brought this action in the ished the board to reserve the amount of county court of La Plata county, making the their fee ($1,025) from any settlement it might board of county commissioners the sole demake of such judgment; otherwise, the board fendant. Afterwards, in pursuance of rul

was

ings so requiring, the plaintiffs filed an clerk, he being ex officio clerk of the board of amended complaint, making the bank and commissioners, we are inclined to think was, the personal representatives of M. R. Shields of itself, sufficient to charge the judgment co-defendants with the board. The repre- debtor with notice, as he was, for this pursentatives of Shields disclaimed any interest pose, the agent of the board; but it is not in the controversy, and answers were filed by necessary so to decide, because two of its the bank and the board. The answer of the members testify that before settlement was bank contained a general denial, and, as a had with the bank, as the assignee of the separate defense, a plea of a judgment in its judgment, this notice, at its regular July favor by the court of appeals. Trial was had meeting, was either read to them by the clerk, to the court without a jury, and judgment or they read it themselves, and so the board was rendered dismissing the action, to re- had actual notice and was explicitly advised verse which plaintiffs have sued out this writ of plaintiffs' intentions, but notwithstanding of error.

this fact, and acting upon the advice of the We do not discuss in detail all of the ques- county attorney, they chose to disregard it, tions raised, but shall determine the rights and paid the judgment. of plaintiffs, both against the county and the That the county board, as the judgment bank; for we are clear that the judgment debtor, is liable to the plaintiffs, we have no should be reversed, and a new trial had. doubt; and that the fruits of the judgment,

This action is not barred by the statute of still in the possession of the bank, are subject limitations pleaded by the board. Plaintiffs to plaintiffs' lien, is just as evident. In Frink have not been guilty of laches in enforcing v. McComb (C. C.) 60 Fed. 486, Dallas, circuit their claim, and they are not estopped by judge, after a review of the authorities, thus any act or conduct to maintain the action. states the law: "Taken together, they clear

The decision of the court of appeals is not ly establish that the right of counsel to which res adjudicata. It has been held by this we have referred [the right to resort to a court in the case of Brown v. Tourtelotte, 24 judgment recovered as the result of their proColo. 204, 50 Pac. 195, that the doctrine of fessional services] cannot be extinguished by the law of the case does not apply to deci- assignment of the judgment or decree, made sions of the court of appeals in cases where without their acquiescence.” Wales, district their final determination may ultimately rest judge, speaking to the same point, says (page with the supreme court. This sufficiently 494): "The counsel for the assignees condisposes of the claim in that behalf made by tended that they were in the position of purthe defendant in error. But there is an ad- chasers for a valuable consideration, without ditional reason, if the doctrine were appli- notice of the attorney's lien. But this does cable at all, why it should not be applied here, not satisfactorily appear. When they took the consisting of the fact that the evidence before assignments they knew that the estate of C. the court of appeals was not the same as that B. Snyder was insolvent, and that Mr. Frink in the record before us. That this is so seems individually (they being the judgment créditclear from a statement by the writer of the ors) was unable to pay counsel fees, and they opinion in that case when he said that there were thus put on inquiry as to the claims of was no evidence in the record that the board the solicitors, of whose connection with the of commissioners had any notice or knowl- cause they had been informed by Mr. Frink, edge of plaintiffs' intention to rely upon their and, at least, had reason to suspect that there lien, or that the bank took the assignment of was no other source for the payment of those the judgment knowing of plaintiffs' claim; fees than a portion of the proceeds of the dewhereas, in the record before us, it conclu- cree. But the want of actual notice to the sively appears that, before the judgment assignees, as is conclusively demonstrated in debtor paid the bank the amount of the judg- the opinion of Judge Dallas, would not enment, it had actual notice that the plaintiffs | able them to take precedence of the attorintended to resort thereto for the enforce ney's lien." ment of their lien, and that the bank, through The facts in the case at bar are that its attorney, also knew of plaintiffs' inten- Shields, the judgment creditor, was insolvent tion before the judgment was assigned. It is at the time of the recovery of the judgment true that neither the filing by the attorneys and when it was transferred. The assignees with the clerk of the district court, nor their knew this fact. They knew that the plainentry in the margin of the judgment record, tiffs, as Shields' attorneys, had no other way of a statement that they claimed a lien for to make their fees except out of the proceeds their fees, was constructive notice to any one, of the judgment, and knew of their intention for there is no statute providing for either act. to do so. Indeed, the bank was the real That fact, however, is not decisive; for the owner of the judgment when it was rendered, attorney for the bank, who, in the light of and plaintiffs might have proceeded against the record, is its representative, read this that institution directly, as the judgment entry in the margin before the judgment was creditor, for the purpose of enforcing their acquired, and so the bank had actual notice lien. The case is a much stronger one in beof plaintiffs' intention to enforce their lien. half of plaintiffs than was the case for the

The filing of the notice with the county attorneys in Frink v. McComb, supra. Pos

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