Arp & Hammond Hardware Co. v. Hammond Packing Co.
Decision Date | 02 June 1925 |
Docket Number | 1192 |
Parties | ARP & HAMMOND HARDWARE CO. v. HAMMOND PACKING CO. ET AL. [*] |
Court | Wyoming Supreme Court |
APPEAL from District Court, Albany County; HARRY P. ILSLEY, Judge.
Action by the Arp & Hammond Hardware Company against the Hammond Packing Company and others. There was judgment for plaintiff and defendant packing company appeals.
Affirmed.
William C. Mentzer for appellant.
William E. Mullen appearing for Robert N. LaFontaine, trustee in bankruptcy of appellant packing company.
The court erred in sustaining plaintiff's demurrer to defendant's separate answer and cross petition, and in refusing to make J. H. Arp a party to said suit; said separate answer alleged facts, which would entitle defendant packing company to an accounting, which would have disclosed material facts in support of defendant's claim of lack of consideration of the notes in suit. Defendant was entitled to interpose an equitable defense; 1 Cyc. 737; 5600, 5660 C. S. The allegations of defendant's cross petition warranted the joinder of Arp as a defendant; White v. Reagan, 32 Ark. 281; Crockett v. Wood, (Va.), 34 S.E. 96; Ulman v. Iager, 155 F. 1011; Hutson v. Wood (Ill.), 105 N.E. 343; 31 Cyc. 222; Weaver v Richardson, 21 Wyo. 343; J. W. Hammond was without authority to execute the notes for the company which were without consideration; Trust Co. v. Loan Co. 167 N.W. 785; Bentley v. Co., 184 P. 113; 10 Cyc. 808; 14-a C. J. 119; Shetter v. Co. 24 P. 25; the burden of showing the validity of contracts and of the fairness and honesty of his dealings with the corporation is on a director, officer or agent; Howland v. Corn, 232 F. 35; Hilger v. Lang, 175 P. 597; Twin Oil Co. v. Marbury, 91 U.S. 587; 3 Fletcher 30-47; ratification by stock holder and directors of an officer's acts is a question of fact for the jury; there can be no acquiescence without knowledge; Scott v. Jackson, 26 P. 898; Ins. Co. v. Caldwell, (Ark.) 58 S.W. 355; Pence v. Langdon, 99 U.S. 578; Gallup v. Fox, 30 A. 760; Stoner v. Mau, 11 Wyo. 408; as between the parties and in the absence of express ratification, there can be no ratification other than an acceptance of benefits; Ry. Co. v. Carr, 157 P. 529; Bank v. Halsey, 19 So. 522; Nisson v. Millen, 91 N.E. 994; a note in renewal of a note void for want of consideration is also void; Central Bank v. Ford, 152 S.W. 700; the conflicting nature of the evidence created a question for the jury; R. R. Co. v. Pollack, 16 Wyo. 321; Peck v. Boomersheim, 190 N.W. 690; Moore v. Bank, 121 P. 626; Alexander v. Co., 154 P. 914; where there is a disputed question of fact, it is error to direct a verdict; 26 R. C. L. 1066; Johnson v. Co., 72 N.W. 1115; the question of consideration should have been submitted to the jury; 26 R. C. L. 1073; Buffington v. Cook, 73 Am. Dec. 491; Guynn Co. v. Co., 38 S.E. 894; Moore v. Bank, supra; the question of the credibility of the witnesses should have been submitted to the jury; Dimock v. Bank, 190 N.W. 485; Power v. Wilson, 196 N.Y.S. 600; plaintiff's witnesses were interested, 38 Cyc. 1570; Mich. Co. v. Co., 52 N.W. 1070; the verdict should not be directed where exceptions have been saved to ruling on evidence; Flandreau v. Ellsworth, 28 N.Y.S. 671; plaintiff's failure to produce books on an issue of lack of consideration where book entries were involved, created a question for the jury; Rodllke v. Taylor, 210 P. 863; Beh v. Van Ness, 180 N.W. 292; Long v. Conn, 179 N.W. 644; where there is any evidence upon which the jury could find against plaintiff the case should be submitted to the jury; 26 R. C. L. 1068.
N. E. Corthell, John W. Lacey and Herbert V. Lacey for respondent.
The ruling sustaining demurrer to defendant's cross petition was correct; it involved new people and new controversies; 5663 C. S. 31 Cyc. 224; Crockett v. Wood, supra; new parties cannot be introduced by cross bill; Shields v. Barrow, 17 How. 129; Perea v. Harrison, 41 P. 529; Buscher v. Volz, 58 N.E. 269; Andrews v. Kibbee, 12 Mich. 94; the cross bill is auxiliary to the proceeding in the original suit; Hill v. Frank, 40 P. 128; defendant cannot inject a new controversy between himself and an outsider, unless some party already before the court is interested, or will be affected by the result; Alpers v. Bliss, 79 P. 171; Am. Exchange Bank v. Davidson, 72 N.W. 129; a new and amended petition after demurrer waives any error in sustaining demurrer; Gale v. Co., 14 Cal. 26; Ganceart v. Henry, 98 Cal. 281; Elliott App. Pro. Page 510, Section 595; the notes were authorized by defendant; acquiescence in acts of a corporate officer by stock holders and directors over a period of years has the affect of antecedent authority; McKell v. Co., 175 F. 321; U. S. L. Co. v. Co., 194 F. 866; Jacksonville v. Hooper, 160 U.S. 514; Sun Printing Co. v. Moore, 183 U.S. 642; Pollitz v. R. Co., 207 N.Y. 113; Bank v. Lbr. Co., 146 S.W. 588; West Side Irr. Co. v. U. S. 246 F. 212; Bennett v. Co., 51 A. 706; Trust Co. v. Miller, 151 N.W. 813; Sherman v. Fitch, 98 Mass. 59; Am. B. Co. v. Lbr. Co., 163 S.W. 167; City v. Eaves, 44 So. 588; 2 Morawetz on Corps. 618; Alaska v. Solner, 123 F. 855; R. R. Co. v. Lbr. Co., 55 S.W. 944; G. V. B. Min. Co. v. First Nat'l Bank, 95 F. 23; 1st Nat'l Bank v. Min. Co., 89 F. 439; Nat'l Life Ins. Co. v. Headrick, 112 N.E. 559; Depot Co. v. Brewing Co., 171 P. 223; Smith v. Bank, 54 A. 385; Alexander v. Irrigation Co., 85 N.W. 283; Frank v. Hicks, 4 Wyo. 502; Mathews v. Nefsy, 13 Wyo. 458; besides authority previously given, the evidence shows ratification by subsequent acquiescence; Atherton v. Beaman, 256 F. 871; a person may be authorized to act as agent for both contracting parties, and it is often done in the case of small corporations; Leavenworth v. R. R. Co., 134 U.S. 688; Pauly v. Pauly, 107 Cal. 8; Adams Co. v. Senter, 26 Mich. 73; Louisville N. A. Co. v. Carson, 38 N.E. 140; Smith v. Stone, 21 Wyo. 62; the evidence shows that C. E. Hammond assented to the execution of the notes in suit; Smith v. Mount, 129 S.W. 722; Hingtgen v. Thackery, 121 N.W. 839; Powers v. Perry, 106 P. 595; Schuster Co. v. Pub. Co., 162 N.W. 173; an allegation that appellant executed the notes is sufficient; Plumb v. Curtis, 33 A. 998; Higbee v. Trumbauer, 83 N.W. 812; St. Louis Co. v. Mill Co., 155 P. 599; It is the duty of the court to direct a verdict, if as a question of law, there is no issue to go to the jury; Franchina v. R. R. Co., 195 F. 462; Hiatt v. Brooks, 22 N.W. 73; Hart v. R. R. Co., 196 F. 180; Scherer v. Griffin, 122 N.W. 1000; State v. Bismark and Co., 153 N.W. 459; Austin v. Service Co., 132 N.E. 458; Interstate Compress Co. v. Agnew Co., 276 F. 882; Riner v. Ins. Co., 9 Wyo. 81; Boswell v. Bank, 16 Wyo. 161; Calkins v. Coal Co., 25 Wyo. 409; a case should not be submitted to the jury where a verdict must rest upon a guess; Powers v. R. R. Co., 106 N.W. 1117; Scott v. R. R. Co., 135 N.W. 110; Kruck v. Conn. 80 A. 162; every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; 3957 C. S. the negotiable instruments law places the burden on the maker of a note to show want of consideration; Columbian Cons. v. Dickinson, 158 N.C. 207; Bank v. Ford (Wyo.) 216 P. 671; Brannan's Negotiable Instruments Law, page 97.
BLUME, J., did not sit.
The Arp and Hammond Hardware Company, plaintiff below and respondent here, obtained a judgment in the District Court of Albany County against the Hammond Packing Company, defendant below and appellant here. To review this judgment the packing company brings the case here by direct appeal.
The recovery was upon nine promissory notes given by the packing company to the hardware company but we are concerned here with only three of them, the other six having been eliminated from our consideration by the brief of counsel for the appellant. The three notes in controversy are one dated January 1, 1910 for $ 17,276.15, one dated February 1, 1910 for $ 13,600.00, and one dated February 1, 1910 for $ 13,100.00; all of them are payable to the order of the Arp and Hammond Hardware Company, all recite they are given for value received, and all are signed Hammond Packing Company, J. W. Hammond, President, attest J. H. Arp, Secretary. All are payable two years after their respective dates.
While various defenses were pleaded by the defendant in its answer to the plaintiff's petition, there are but two urged in the appellant's brief. These are that the notes were given without consideration and without authority.
The case was tried to a jury but upon the conclusion of all the evidence the Court directed the jury to return a verdict in favor of the plaintiff and against the defendant upon all the notes sued upon. The appellant claims the case is one which should have gone to the jury and this requires a consideration by us of all the evidence for the purpose of determining whether, when both parties had rested, the issue was one of law for the Court or one of fact for the jury.
The evidence in the case is rather voluminous, and the history of the transactions between the two companies over a period of many years is related in detail. We have read the evidence with much care but do not feel called upon to quote it or review it at length.
Were the notes executed without authority? Both parties to the suit are Wyoming corporations. The packing company was incorporated in 1900 by J. H. Arp, J. W. Hammond, Sr., and J W. Hammond, Jr., for the purpose of carrying on the packing house, and engaging in a general ranch, business. The incorporators constituted the first board of directors or trustees, as they were then called. In 1904, J. W. Hammond, Jr.,...
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