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and the affiant further shows that at the time of the service aforesaid, after the affiant had read said writ to said Theis, that the said Theis then and there took said writ into his own hands, and read it, and returned it to the affiant, without demanding a copy thereof; that subsequently when this affiant's attention was called to the fact that he had not given said Theis a copy of the writ, that affiant spoke to said Theis about it, and he, the said Theis, said he would fix it up, or fix it all right, or words to that effect; and further affiant saith not. So help me God. Mike Shrugrue.

"Subscribed and sworn to before me at my office in Ashland, in Clark county, Kansas, this 27th day of September, A. D. 1899. My commission expires October 4, 1902. J. M. Grasham, Notary Public."

This is not sufficient to give this court jurisdiction. Section 13, c. 83, 2 Gen. St. 1897, requires a summons in error to be served "as in the commencement of an action." The statute regarding the service of the summons in the commencement of the action (section 63, c. 95, Id.) requires service to me made "by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence." Section 13, c. 83, Id., provides that "service on the attorney of record in the original action shall be sufficient," but it must be in the manner prescribed by section 63, supra. The objection is technical, but the law is explicit, and we must follow it. More than 60 days in excess of one year having elapsed since the rendition of the judgment of the district court, it is now too late for this court to acquire jurisdiction over the objection of the defendant in error. The motion to dismiss is sustained.

(9 Kan. App. 779)

FAIR V. CITIZENS' STATE BANK OF

ARLINGTON.

(Court of Appeals of Kansas, Southern Department, W. D. Nov. 21, 1899.) PARTNERSHIP LIABILITY-NOTE OF INDIVIDUAL PARTNER.

While negotiable paper made in the name of one partner, when his name is not also that of the firm, is not ordinarily binding upon the partnership, yet such paper, taken when the obligation was incurred by the partnership, and upon its credit, will be regarded as merely collateral, and the other partners will be held liable upon the original consideration. (Syllabus by the Court.)

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

Actions by D. J. Fair against the Citizens' State Bank of Arlington. Actions consolidated. Judgments for defendant. Plaintiff brings error. Affirmed.

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

MILTON, J. The record presents three cases, which were tried as one in the district court of Reno county,-two being actions in

replevin, and one for conversion,-the subject-matter of all of which was a number of promissory notes belonging originally to D. J. Fair & Co., a partnership composed of D. J. Fair and George M. Schurr. They were conducting a lumber and grain business at Abbyville, Kan., for about three years prior to February 20, 1895, at which date the partnership was dissolved by mutual consent; Fair remaining in control of the business, and succeeding to the ownership of all the property of the firm, including its notes and accounts. While the partnership existed, Schurr had the entire management of its affairs, and prior to its formation he managed the business at that place for Fair. It seems

to have been understood between the partners that the banking transactions of the firm should be with the Valley State Bank of Hutchinson. In 1892 and 1893, and after the partnership was formed, Schurr borrowed various sums from the defendant in error, giving his individual notes therefor. At such times he stated that the money was "needed to tide over collections," or "needed in the business." Checks for the proceeds of two of these notes were deposited by Schurr in the Valley State Bank to the credit of D. J. Fair & Co., and such checks were thereafter returned to the Arlington bank. In August, 1892, the defendant in error, by its president, deposited with Schurr, at Abbyville, $200 in currency, to be used in cashing checks at that place for the convenience of the bank's customers; Schurr giving his demand note therefor, as a memorandum of the transaction. Four months later the bank's president, observing that the money was not being called for as anticipated, proposed to take it up and surrender the demand note. Schurr then said to him: "We have used that in our business, we have bought wheat with it, and propose to pay interest on it as a loan from that date." It was so arranged, and the bank retained the note. Renewals of the notes and partial payments thereon followed until in March, 1894, when Schurr, representing that the firm needed $400 with which to pay for wheat theretofore stored with it, began the transactions whereby the notes in controversy were given as collateral security to the individual notes of Schurr for loans made by the bank. The evidence on behalf of the plaintiff tended to prove that he had no knowledge whatever respecting the transactions whereby such notes were indorsed by Schurr and delivered as collateral security to the defendant bank. On the part of the defendant the evidence tended to prove that such transactions were always regarded by the bank officers as transactions with the firm of D. J. Fair & Co., and that the loans were made upon the credit of the firm, and for its use and benefit, and that in fact a great part, if not all, of the proceeds of the loans made to Schurr at the times the collateral notes were delivered, were used in partnership business. At the times the ac

tions were commenced the defendant bank held a note of Schurr for $647, with certain notes of D. J. Fair & Co. as collateral thereto; and it had during the preceding year collected some of the collateral notes deposited with it at various times by Schurr, and had applied the proceeds upon his notes. There was no direct evidence of fraudulent conduct on the part of Schurr in respect to the partnership affairs. The court instructed the jury at great length, covering fully all features of the controversy, and refused to give any of the instructions asked for by the plaintiff or the defendant. The trial court's theory is well expressed in the following instructions given to the jury: "The jury are instructed further that if you find from the evidence that Schurr was general manager and a partner of the firm of D. J. Fair & Co., and as such charged with the duties of raising money for the firm and paying debts, and went to defendant and represented that he wanted to borrow money to assist collections of the firm, or to buy property for the firm, or to refund money of other persons used by the firm, or pay the firm debts, and for the purpose of borrowing the money offered his individual note, with collateral security, the last payable to the firm, duly indorsed by the firm, and the bank, on the strength of his said note and the said collateral, loaned the money in good faith, believing it was to be used for such partnership purposes, in that event the plaintiff cannot recover the possession or value of any of the collateral notes so transferred until the entire debt evidenced by the individual note of Schurr is paid, regardless of the fact whether the said money so loaned was used in the partnership business or not, and regardless of the state of his account with the firm, and regardless of whether the representations were true or false." Separate verdicts were returned in each case for the defendant, and judgment was entered accordingly.

The verdict and judgment, being based on conflicting evidence, must stand, unless it appears that the court erred in the admission or the exclusion of testimony, or in giving or refusing to give instructions. The verdicts are equivalent to findings that the money was borrowed by Schurr from the bank for the firm of D. J. Fair & Co., upon the firm's credit, and that it was loaned to the firm, upon the firm's credit, by the bank. It follows that that the debt evidenced by the note of Schurr was a firm debt. The present action is not upon such note, and it was clearly competent for the bank to defend against the plaintiff's action by showing the real nature of the transactions upon which it relied as a defense. Prima facie, Schurr's note bound himself as an individual only, while in fact, as found by the jury, the transactions wherein he gave his note bound the firm of Fair & Co. It was for the jury to determine, under proper Instructions, whether the money was borrowed by and loaned to the firm, and upon

its credit, or whether the sole credit was given to Schurr. The important question is not who gave the note, but, rather, who created the debt; that is, the real nature of the contract of indebtedness, of which Schurr's note is an evidence. Such questions are set at rest by the general finding of the jury.

The plaintiff in error contends that the following proposition of law governs in this case: "Negotiable paper made in the name of one partner, when his name is not also that of the firm, is not, as a general rule, binding upon the partnership." 17 Am. & Eng. Enc. Law, 1027. This rule is supported by many authorities which are cited in the notes, but it is too narrow to cover the facts presented by the record before us. The rule contended for was sufficiently embodied in the instructions given, but the court (as we think, properly) also embraced in its instructions the proposition which is thus stated on page 1029 of the same volume: "Individual paper of one partner, taken when the obligation was incurred by the partnership, or upon its credit, will be regarded as merely collateral, and the other partners will be held liable upon the original consideration." The same doctrine is thus stated by Bates: "Where the individual paper of one partner is taken, yet if the sale was made to, and upon the credit of, the firm, the other partners will be liable for the original consideration, as for money lent or goods sold, although they are not liable upon the paper, which is merely collateral." Bates, Partn. § 440. In the case of Hoeflinger v. Wells, 47 Wis. 628, 3 N. W. 589, the trial court sustained a general demurrer to the plaintiff's complaint, wherein it was alleged that one Stafford borrowed from the plaintiff, on account of and for the use of the firm of which he was a member, a certain sum of money, and that such loan was evidenced by Stafford's individual note, and that the money so borrowed was expended for the use of the firm. The supreme court reversed the order of the trial court sustaining the demurrer, and in its opinion said: "In our view of the construction which must be given to the allegation as to the borrowing of the money, the giving of the individual note of one of the partners for the money borrowed by the firm would be no bar to a recovery against the firm after the note became due and remained unpaid. If upon the trial the plaintiff can show that the money was borrowed for the firm, that he was at the time advised that it was for the firm, and that he loaned it to the firm and upon its credit, and, as we construe the allegations of the complaint, they are sufficient to admit such evidence,-then the mere taking of the individual note of the one partner for the money so loaned will not defeat the action. The taking of such note may be evidence tending to show that the money was not loaned to the firm, and that the sole credit was given to Stafford, but it is not conclusive of that fact; and if the jury or

the court should find as a fact that the money was borrowed by and loaned to the firm, and upon its credit, then the taking of the individual note of one member of the firm would not be a payment of such firm debt, unless it was affirmatively shown that such note was taken in payment of the same," citing numerous supporting decisions.

Complaint is made of the court's refusal to permit the plaintiff to testify that D. J. Fair & Co., as a firm, had no business transactions with the Bank of Arlington, and that he, as one of the partners, never authorized Schurr to transact business of any kind in the name of or for the firm with that bank, and that he had no knowledge of the fact that Schurr had borrowed money of the defendant in the name of the firm, or had transferred any of the firm notes to the bank. An examination of the record indicates that the plaintiff actually testified concerning the matters just stated, and we think that no substantial error was committed in the respect named.

Plaintiff in error also claims that the court erred in permitting the witness Schurr to answer a question as to whether or not a statement made by the preceding witness concerning certain transactions was substantially correct. We think the question was improper, and that the court should not have permitted it to be answered over the objection of the plaintiff; but, as the witness thereafter testified fully concerning the transactions referred to in the question, it does not appear that the plaintiff was harmed by the error. judgment of the district court will be affirmed.

(26 Colo. 547)

CARPER v. SWEET. (Supreme Court of Colorado.

The

Nov. 9, 1899.)

BROKERS-COMPENSATION-CONTRACT-RE

VIEW-FINDINGS OF FACT.

1. A finding of fact as to the terms of a contract under which the principal left with an agent his property for sale, made on conflicting evidence, is conclusive on appeal.

2. Where an owner openly places his property in the hands of rival agents for sale, and one makes the sale to a customer with whom the other had first, but unsuccessfully, negotiated, the owner is not liable to the latter for commissions.

Error to Arapahoe county court. Action by Frisbee D. Carper against William E. Sweet. Judgment for defendant. Affirmed.

Plaintiff brings error.

A. B. Seaman and H. S. Silverstein, for plaintiff in error. James H. Pershing, for defendant in error.

CAMPBELL, C. J. This is an action by a real-estate agent to recover from his principal commissions for the sale of the latter's real estate. The trial below was before the court without a jury, and resulted in a judg-|

ment for the defendant. There is a conflict in the testimony as to the terms of the contract under which the defendant left with the plaintiff his property for sale. The defendant testified that plaintiff's authority to sell required, and his commission depended upon, an immediate sale, which he failed to effect, while plaintiff swears that no time limitation was imposed. Upon the presumption, in which we are entitled to indulge, that the trial court found in favor of defendant's contention concerning the terms of the contract, we would be justified in affirming the judgment on the sole ground that, in a substantial conflict of the testimony, we are precluded by the finding below. But, upon the testimony of the plaintiff alone, we think he is not entitled to recover. The case is not one where property has been left for sale by its owner exclusively with one agent. On the contrary, the defendant openly, and with the knowledge of plaintiff, left the property for sale with several different agents. Plaintiff was not able to effect a sale with the customer with whom he negotiated, and did not report to his principal the result of his efforts; and his subsequent conduct in showing to this customer other and cheaper property indicates that he abandoned his efforts to sell defendant's property. About two months after plaintiff had ineffectually made the foregoing attempt, another agent of the defendant, who was authorized to sell, through his own efforts in that behalf succeeded in selling to the same purchaser. The case was one where rival agents were authorized to sell, and where one produced a customer to whom the sale was made, and with whom the rival agent could not succeed. The defendant was under obligation to pay the agent who produced the purchaser to him; for this agent, and not the other, was the efficient and immediate cause of the sale. There is not a word of evidence that the defendant interfered as between the two agents, while it abundantly appears that he remained entirely neutral, and in fact did not know that the plaintiff had ever talked with the purchaser until the sale by the rival agent had been accomplished. Then it was that the plaintiff claimed a commission on the ground that the sale had been made to one with whom he had first, but unsuccessfully, negotiated. At that time the deal had been consummated, and nothing remained to be done, except the delivery of the deed to the purchaser, and the receipt of the purchase money by the owner. The case comes squarely within the rule recognized in Scott v. Lloyd, 19 Colo. 401, 35 Pac. 733,-that, where the principal has openly placed his property in the hands of different agents for sale, he may pay the commissions to the one who produces the purchaser, and be relieved from any liability to the others. The judgment should be affirmed, and it is so ordered. Affirmed.

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1. The decision of the court of appeals on a former appeal is not the law of the case, on a subsequent appeal to the supreme court.

2. The decision of the court of appeals on a former appeal is not res adjudicata, on a subsequent appeal to the supreme court, where the evidence before that court was not the same as the evidence before the supreme court.

3. Where an attorney, acting for a bank, in taking an assignment of a judgment reads a notice of an attorney's lien, entered on the record, before taking the assignment, the bank has notice of plaintiff's intention to enforce the lien.

4. Where the judgment debtor and the assignee of a judgment had notice of an attorney's lien against the judgment before the assignment was made, both are liable for the amount of the lien.

5. Where the judgment debtor and the assignee of a judgment are both liable on an attorney's lien against the judgment, the plaintiff may elect as to whether he shall seek a single satisfaction of both or one, and, if so, which one, of the defendants.

Error to La Plata county court.

Action by W. C. Davidson and others against the board of county commissioners of La Plata county. Judgment for defendant, and plaintiffs bring error. Reversed.

N. C. Miller, for plaintiffs in error. Willis A. Reese and O. S. Galbreath, for defendant in error.

CAMPBELL, C. J. This is an action to enforce an attorney's lien upon a judgment. On April 11, 1892, in the district court of La Plata county, M. R. Shields, as plaintiff, recovered a judgment against the board of county commissioners of La Plata county for $5,266.38. The plaintiffs here were the attorneys for Shields in that action, and it is for the fees earned by them in prosecuting the same that the attorney's lien is claimed. On the 12th of May of the same year they filed in the office of the clerk of the district court a notice of their claim of lien, and on the next day caused to be entered in the margin of the record of the judgment a notice of their intention to rely on the same. Afterwards, and on the same day, Shields, the judgment debtor, by a writing in the same margin, assigned the judgment, as collateral security, to the Colorado State Bank of Durango, for a debt he owed it; and the attorney of the bank, who acted for it in taking the assignment, read this notice of plaintiffs before the assignment was made. On the 26th of that month, plaintiffs filed with the county clerk of the county a notice, addressed to the board of county commissioners, in which they claimed a lien upon the judgment for their services, and admonished the board to reserve the amount of their fee ($1,025) from any settlement it might make of such judgment; otherwise, the board

would be held liable therefor. In October, 1892, the county delivered to the bank, in satisfaction of the judgment, certain of its bonds, which were sold by the bank, which applied the proceeds on Shields' indebtedness. On the 14th of February, 1893, the plaintiffs brought an action in the county court of La Plata county to enforce their lien, naming as defendants M. R. Shields and the Colorado State Bank of Durango. Judgment went against plaintiffs, and they appealed to the district court of the same county, where, after filing an amended complaint naming as defendants M. R. Shields, who was not served with process, the board of county commissioners of La Plata county, which appeared, but filed no answer, and the Colorado State Bank of Durango, which filed an answer, a trial was had on the issues joined under the amended complaint and this answer, resulting in a decree in favor of the plaintiffs, adjudging the amount of their claim a lien upon the judgment, and ordering the bank to account for and pay the same to the plaintiffs. The bank appealed to the court of appeals, and the judgment was reversed, the opinion of the court appearing in 7 Colo. App. 91, 42 Pac. 687. The opinion discloses that, in the judgment of that tribunal, there was no evidence that the board of commissioners received any notice, or had any knowledge, of the plaintiffs' intention to resort to the judgment for a satisfaction of the lien, until service of summons upon them; and it further appeared from the evidence that the bank took its assignment of the judgment without any notice or knowledge of the plaintiffs' claim, and that the board paid to the bank the amount of the judgment in good faith and in ignorance of plaintiffs' claim.

Plaintiffs, therefore, according to the opinion, having lost their lien against the judgment debtor (the county), and their lien being subordinate to that of the bank, the decree was reversed. The court, as a matter of law, however, held that, if there was a surplus of the judgment after the bank's claim was liquidated, plaintiffs might have a lien thereupon; but as Shields was not served with process, and did not voluntarily appear, no judgment was, and none could have been, rendered against him upon which the bank's liability depended, but which, in any event, would not attach, unless the amount of plaintiffs' lien was first established against Shields. The case was therefore remanded, with leave to the plaintiffs to amend their complaint to make Shields a party. After the cause was remanded to the district court, the plaintiffs, instead of amending as suggested, dismissed the action without prejudice, and then, after first establishing the amount of their claim as a judgment against the estate of Shields (Shields in the meantime having died), brought this action in the county court of La Plata county, making the board of county commissioners the sole defendant. Afterwards, in pursuance of rul

ings so requiring, the plaintiffs filed an amended complaint, making the bank and the personal representatives of M. R. Shields co-defendants with the board. The representatives of Shields disclaimed any interest in the controversy, and answers were filed by the bank and the board. The answer of the bank contained a general denial, and, as a separate defense, a plea of a judgment in its favor by the court of appeals. Trial was had to the court without a jury, and judgment was rendered dismissing the action, to reverse which plaintiffs have sued out this writ of error.

We do not discuss in detail all of the questions raised, but shall determine the rights of plaintiffs, both against the county and the bank; for we are clear that the judgment should be reversed, and a new trial had.

This action is not barred by the statute of limitations pleaded by the board. Plaintiffs have not been guilty of laches in enforcing their claim, and they are not estopped by any act or conduct to maintain the action.

The decision of the court of appeals is not res adjudicata. It has been held by this court in the case of Brown v. Tourtelotte, 24 Colo. 204, 50 Pac. 195, that the doctrine of the law of the case does not apply to decisions of the court of appeals in cases where their final determination may ultimately rest with the supreme court. This sufficiently disposes of the claim in that behalf made by the defendant in error. But there is an additional reason, if the doctrine were applicable at all, why it should not be applied here, consisting of the fact that the evidence before the court of appeals was not the same as that in the record before us. That this is so seems clear from a statement by the writer of the opinion in that case when he said that there was no evidence in the record that the board of commissioners had any notice or knowledge of plaintiffs' intention to rely upon their lien, or that the bank took the assignment of the judgment knowing of plaintiffs' claim; whereas, in the record before us, it conclusively appears that, before the judgment debtor paid the bank the amount of the judgment, it had actual notice that the plaintiffs intended to resort thereto for the enforcement of their lien, and that the bank, through its attorney, also knew of plaintiffs' intention before the judgment was assigned. It is true that neither the filing by the attorneys with the clerk of the district court, nor their entry in the margin of the judgment record, of a statement that they claimed a lien for their fees, was constructive notice to any one, for there is no statute providing for either act. That fact, however, is not decisive; for the attorney for the bank, who, in the light of the record, is its representative, read this entry in the margin before the judgment was acquired, and so the bank had actual notice of plaintiffs' intention to enforce their lien.

The filing of the notice with the county

clerk, he being ex officio clerk of the board of commissioners, we are inclined to think was, of itself, sufficient to charge the judgment debtor with notice, as he was, for this purpose, the agent of the board; but it is not necessary so to decide, because two of its members testify that before settlement was had with the bank, as the assignee of the judgment, this notice, at its regular July meeting, was either read to them by the clerk, or they read it themselves, and so the board had actual notice and was explicitly advised of plaintiffs' intentions, but, notwithstanding this fact, and acting upon the advice of the county attorney, they chose to disregard it, and paid the judgment.

That the county board, as the judgment debtor, is liable to the plaintiffs, we have no doubt; and that the fruits of the judgment, still in the possession of the bank, are subject to plaintiffs' lien, is just as evident. In Frink v. McComb (C. C.) 60 Fed. 486, Dallas, circuit judge, after a review of the authorities, thus states the law: "Taken together, they clearly establish that the right of counsel to which we have referred [the right to resort to a judgment recovered as the result of their professional services] cannot be extinguished by assignment of the judgment or decree, made without their acquiescence." Wales, district judge, speaking to the same point, says (page 494): "The counsel for the assignees contended that they were in the position of purchasers for a valuable consideration, without notice of the attorney's lien. But this does not satisfactorily appear. When they took the assignments they knew that the estate of C. B. Snyder was insolvent, and that Mr. Frink individually (they being the judgment creditors) was unable to pay counsel fees, and they were thus put on inquiry as to the claims of the solicitors, of whose connection with the cause they had been informed by Mr. Frink, and, at least, had reason to suspect that there was no other source for the payment of those fees than a portion of the proceeds of the decree. But the want of actual notice to the assignees, as is conclusively demonstrated in the opinion of Judge Dallas, would not enable them to take precedence of the attorney's lien."

The facts in the case at bar are that Shields, the judgment creditor, was insolvent at the time of the recovery of the judgment and when it was transferred. The assignees knew this fact. They knew that the plaintiffs, as Shields' attorneys, had no other way to make their fees except out of the proceeds of the judgment, and knew of their intention to do so. Indeed, the bank was the real owner of the judgment when it was rendered, and plaintiffs might have proceeded against that institution directly, as the judgment creditor, for the purpose of enforcing their lien. The case is a much stronger one in behalf of plaintiffs than was the case for the attorneys in Frink v. McComb, supra. Pos

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