Abbey v. Long

• Decision Date: 08 November 1890
• Parties: ORRIN ABBEY v. ADAM LONG, et al
• Court: Kansas Supreme Court

24 P. 1111

44 Kan. 688

ORRIN ABBEY v. ADAM LONG, et al

Supreme Court of Kansas

November 8, 1890

Error from Republic District Court.

THE opinion contains a sufficient statement of the case.

W. T Dillon, for plaintiff in error.

Caldwell Ellis & Cook, for defendants in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

This proceeding was begun by the plaintiffs below, in the district court of Republic county, to obtain an order for an execution against the property of Orrin Abbey as a stockholder in the Republic County Cooperative Association, a corporation against which the plaintiffs below had a judgment. December 23, 1887, the defendants filed in the district court of Republic county a motion asking an order directing an execution to issue against the property of the plaintiff as a stockholder in said corporation, to satisfy a judgment in their favor against said corporation. December 24, 1887, notice of said motion was served upon the plaintiff. June 1, 1888, the motion was heard and allowed by the court, and execution awarded in the sum of $ 139.65, and costs of the proceeding, taxed at $ 2.10. The defendant objected to the allowance of the order, and excepted; and moved the court to set said order aside and grant a new hearing, which motion was overruled and exception allowed. The plaintiff asks to have the order of the district court allowing execution to issue, reversed, because -- first, the order is contrary to the evidence; second, is contrary to law; third, court erred in taxing the costs of the proceeding against the plaintiff in error.

The undisputed evidence shows that the Republic County Cooperative Association, Patrons of Husbandry, was, at the time this proceeding was begun, a corporation organized for other than railway, religious or charitable purposes; that the defendants had a judgment against said corporation upon which there was $ 201.80 due and unpaid; that the plaintiff was a stockholder in said corporation owning stock to the amount of $ 250, par value; that execution had issued upon the judgment of the defendants against said corporation and been returned by the sheriff with an indorsement thereon, that he had made diligent search and could find no property of any kind belonging to said corporation, defendant, on which to levy the execution; that the corporation owed other creditors the following sums: C. R. Barnes Milling Company, $ 135.97; Samuel Bliss, $ 8.29; D. H. Sallinger, $ 33.99; Chase Brothers, $ 35.21; Inglehart, Winning & Co., $ 36.46; that each of said claims had in fact been assigned to W. T. Dillon, and that W. T. Dillon had upon the back of each of said assignments receipted to the plaintiff the amount assigned. It is agreed that the claims assigned to Dillon, and by him receipted to the plaintiff, were purchased by Dillon for less than their face value, and that the full sum paid therefor was $ 110. It is admitted that there were other responsible stockholders of said corporation from whom the claim of the defendants could be made. The record shows that Dillon was the attorney of the plaintiff in this proceeding and employed by him to look after his interest as a stockholder in said corporation at the time that Dillon purchased and took the assignment of the claims receipted by him to the plaintiff.

The disputed question of fact in the case is: Was Dillon acting for the plaintiff in purchasing the claims assigned to him (Dillon), and therefore took them for the plaintiff, notwithstanding he took the assignments in his own name; or was he acting for himself, without any understanding with the plaintiff, and independent of him?

This question the trial court resolved against the plaintiff holding that Dillon was acting for him, as his agent, in purchasing the claims assigned to Dillon, and by him receipted to the plaintiff. This is the ruling complained of in the first assignment of error. A careful examination of the evidence of the plaintiff and Mr. Dillon satisfies us that the court below was justified in its conclusion that Dillon acted for the plaintiff in purchasing claims against the corporation. The character of the evidence leads irresistibly to that conclusion. Dillon was plaintiff's attorney, and had advised him in relation to his liability as a stockholder in said corporation before the motion in this proceeding was filed; had talked with plaintiff about the effect of plaintiff's purchase of claims against the corporation at less than their face value. When he purchased the claims, though he took an assignment of them in his own name, he bought them with the plaintiff's money. It is true, he says he borrowed the money of the plaintiff; but all the evidence, taken together, upon that subject, hardly supports that theory; but, on the contrary, shows that the plaintiff, having been informed by Mr. Dillon that it was at least doubtful whether if he (the plaintiff) purchased claims against the corporation at a discount, he could claim credit for their face value, arranged with Dillon to furnish him (Dillon) with the money to buy the claims, with the understanding that Dillon should take assignments of the claims to himself, and receipt them to the plaintiff. The trial court heard the evidence, and came to this conclusion,...