Banks v. Everest

• Citation: 12 P. 141,35 Kan. 687
• Court: Kansas Supreme Court
• Decision Date: 05 November 1886
• Parties: DAVID BANKS AND A. B. BANKS, Partners as Banks Brothers, v. A. S. EVEREST, B. P. WAGGENER AND FRANK EVEREST, Partners as Everest & Waggener

12 P. 141

35 Kan. 687

DAVID BANKS AND A. B. BANKS, Partners as Banks Brothers, v. A. S. EVEREST, B. P. WAGGENER AND FRANK EVEREST, Partners as Everest & Waggener

Supreme Court of Kansas

November 5, 1886

Error from Atchison District Court.

EVEREST & WAGGENER, of Atchison, Kansas, brought an action in the district court of Atchison county, against Banks Brothers, to recover damages for the breach of an alleged contract. They allege that in 1883, Banks Brothers, through their duly-authorized agent, J. E. Frederick, sold and agreed to deliver the reports of the states of Vermont, New Hampshire and Colorado, for the sum of $ 600, the delivery to be made at Atchison, Kansas, free of any charges, and the price of the books to be paid within thirty days from the delivery thereof. They allege that the defendants have failed and refused to comply with the agreement, by which the plaintiffs have been damaged in the sum of $ 300. The case was tried without a jury, at the June Term, 1884, and the court, at the request of the parties, stated its conclusions of fact and of law, which are as follows:

CONCLUSIONS OF FACT.

"1. The plaintiffs are partners, engaged in the practice of law at Atchison, Kansas, and they have been such partners so engaged for several years last past.

"2. The defendants are partners, engaged in the business of publishing, selling and dealing in law books, at Albany, in the state of New York, and they have been such partners so engaged in said business for several years last past, and they are assisted in their business by traveling salesmen canvassers, or agents.

"3. On and prior to March 6, 1883, one J. Edward Frederick was a traveling agent in the employ of the defendants, and was duly authorized to represent them. It was intended by the defendants, however, that all sales made by J. Edward Frederick should be subject to the approval of the defendants before they should be binding upon the defendants, and said J. Edward Frederick so understood his authority. The plaintiffs did not know of such limitation of the authority of said J. Edward Frederick. They had frequently bought books from the defendants through such traveling agents or salesmen, after agreeing with such agents or salesmen upon the books and the price, and such books had always been furnished by the defendants at the price agreed upon between the plaintiffs and such traveling agents or salesmen, and the defendants never notified the plaintiffs, through the agents of the defendants nor otherwise, that the authority of their agents or salesmen was so limited, until after the controversy arose in this case.

"4. On March 6, 1883, said J. Edward Frederick called upon the plaintiffs at their office in Atchison, and asked them if they wanted to buy any law books from the defendants. After considerable negotiation, the plaintiffs agreed to purchase and said J. Edward Frederick agreed on the part of the defendants to sell a set of New Hampshire reports, a set of Vermont reports, and a set of Colorado reports, for the sum of $ 600, to be delivered in Atchison in the usual course of business, and to be paid for in thirty days thereafter. Some of the books were to be old and some new, but the old ones that needed rebinding were to be rebound so as to make them in good condition. Said agreement was wholly in parol, and nothing was said about the same being subject to the approval of the defendants, and the plaintiffs understood the agreement to be an absolute contract, and not subject to any condition other than as stated in this conclusion of fact.

"5. Said J. Edward Frederick immediately requested the defendants by letter to send said reports to the plaintiffs at said price, but the defendants refused, and have ever since refused, to forward said reports to the plaintiffs at said price, and they then denied, and have ever since denied, the validity of said agreement, on the ground that it was conditional only, and not complete or binding until after their approval, and that they never approved it.

"6. At the time and place at which such books should have been delivered, under the terms of said agreement, they were worth, in the condition that they should have been delivered the sum of $ 870.

"7. Said books have never been forwarded by the defendants to the plaintiffs, although the plaintiffs have ever been ready and willing to pay for the same in accordance with said agreement, and the plaintiffs often demanded performance of said agreement by the defendants before this action was commenced."

CONCLUSIONS OF LAW.

"1. The defendants were and are bound by the agreement made by the plaintiff with said agent of the defendants.

"2. The plaintiffs are entitled to recover from the defendants the sum of $ 270, and costs of this suit."

Judgment was rendered for the plaintiffs, for $ 270 and costs. The defendants, Banks Brothers, bring the case here.

Judgment affirmed.

Porter & Hunter, and Jackson & Royse, for plaintiffs in error.

Everest & Waggener, defendants in error, for themselves.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The plaintiffs in error attack the findings of fact...