"1.
On April 1, 1875, the defendant E. A. Barber and one B. H
Dayton formed a partnership in the business of private
banking, at Humboldt, Allen county, Kansas. The business of
the firm consisted in loaning money, discounting notes
issuing and selling bills of exchange, receiving money on
deposit, and doing generally such business as ordinarily and
usually comes within the scope of private banking. As an
incident to their business, it was their custom also to
borrow money, when the same was needed or required by them in
the course of their banking business, for which money, so
borrowed, it was their custom to execute and deliver the
notes of the firm. From the time of the organization of the
partnership up to some time in the fall of 1883, Dayton was
the active manager of the banking business, and attended to
the most of the correspondence of the bank. Barber was a
practicing lawyer during said period, and practiced his
profession as such, and in that connection attended to the
collections of the firm.
"2.
The health of Dayton failed him, and, on September 1, 1884,
the firm dissolved by mutual consent, Dayton withdrawing from
the firm, while Barber continued in the business. Dayton died
on the 6th day of October, 1885. The plaintiff, Van Horn,
resided at Springfield, Mass., when the aforesaid partnership
of Dayton, Barber & Co. was formed, and had for many
years prior thereto, and has ever since. Dayton was his
son-in-law, having married his only daughter.
"3.
The facts in relation to the note for $ 1,100, declared on in
the petition as plaintiff's first cause of action, are as
follows: Van Horn, it appears, was a man of considerable
means, and was dealing to some extent in Kansas securities,
which he would buy, dispose of or collect through his
son-in-law, Dayton. In February, 1878, he owned three notes
made by persons in Kansas, to wit: A note of John Kile for $
500, a note of R. H. Cunningham for $ 300, and a note of John
Campbell for $ 300, and these notes he had placed in the
hands of Dayton for collection. These parties paid their
notes to Dayton in February and March, 1878, and on the 28th
of November, 1878, Dayton executed in the name of the firm
the said $ 1,100 note, and forwarded it by mail to his
father-in-law, Van Horn, stating to him what it was for, and
at the same time sent him a draft for $ 97.20, the same being
intended to cover interest on said $ 1,100 from the time it
had been paid in up to November 29, 1878, the date of the
said note. The correspondence out of which this transaction
grew, so far as shown by the evidence, consists of
Dayton's letter to Van Horn of date February 8, 1878,
marked 'U'; Van Horn's reply thereto, of date
February 18, 1878, marked 'No. 20'; Dayton's
letter to Van Horn of date November 28, 1878, marked
'A'; and Van Horn's reply thereto, dated December
3, 1878, and marked 'B.' And said letters are
referred to and made a part of this finding. It appears also
from the correspondence that some oral negotiations took
place between Dayton and Van Horn respecting the notes for
which the note in suit was given, but what said oral
negotiations were the evidence does not disclose. None of the
money for which said $ 1,100 note was given went to the
benefit of said firm of Dayton, Barber & Co., nor did
Barber know of the existence of said note until after the
death of Dayton, and, from all the evidence, facts and
circumstances in the case, I find that this $ 1,100 note was
a private and personal transaction between Dayton and Van
Horn only.
"3
1/2 The facts in relation to the $ 1,000 note, set out in the
petition as plaintiff's second cause of action, are as
follows: About January 31, 1878, the said firm of Dayton,
Barber & Co. became financially embarrassed, owing to the
failure of their banking correspondent at Kansas City, Mo.;
and thereupon Dayton wrote Van Horn a letter of said date,
advising him of their embarrassment, and requested him to
deposit $ 2,000 to the credit of Dayton, Barber & Co., in
the bank of their New York correspondent, Gilman, Son &
Co., and in compliance with said request, on the 6th of
February, 1878, Van Horn deposited with Gilman, Son & Co.
the sum of $ 1,000, to the credit of Dayton, Barber & Co.
The letter of Dayton, making this request, is dated January
31, 1878, is marked 'No. 8,' and is hereby referred
to and made a part of this finding. On February 6, 1878, Van
Horn telegraphed Dayton advising him that he had made said
deposit of $ 1,000, and thereupon, on said day, Dayton wrote
a letter to Van Horn containing the following: 'I have
just received a telegram from you that you had forwarded $
1,000 for our credit with G. S. & Co. I have sold you $
1,000 in good notes, and taken them from ours and put them
into an envelope for you, and will collect them when due for
you. Accept my thanks.' On the same day Dayton took a
number of notes that belonged to the bank, aggregating a
little over $ 1,000, and he marked said notes 'paid'
on the books of the bank, and withdrew them from the assets
of the bank and put them apart for Van Horn. No note was
given to Van Horn at this time, and what answer or response
he made to the aforesaid letter from Dayton of February 8,
1878, does not appear. On February 18, Dayton wrote a letter
to Van Horn, inclosing a draft for $ 216, of which $ 120 was
interest at 12 per cent. for one year on the aforesaid $
1,000, and he also inclosed the note of the firm for said $
1,000. In his letter he stated the following in regard to the
note and the original transaction generally: 'I will also
inclose our note for this $ 1,000, as I believe we have never
done so. As I stated to you at the time we received it, we
sold to you $ 1,000 in good notes, and have kept turning them
on short time, and will continue to do so, in the same way,
but will also send you our note, so that you can have
something more to show, and probably can keep track of it
better.' Said letter is marked 'O,' and is made a
part of this finding, and the answer of Van Horn of date
February 24, 1879, marked 'No. 21,' is also made a
part of this finding. On February 7, 1881, Dayton executed,
in the name of the firm, and sent Van Horn, as a renewal of
said above-named note, a note of date February 7, 1881, due
in one year, and drawing 10 per cent. interest, which is the
note sued on in plaintiff's second cause of action
herein. See Dayton's letter to Van Horn of date February
7, 1881, marked 'No. 16,' which is made a part of
this finding. Barber knew at the time of this deposit by Van
Horn of said $ 1,000 to the credit of the firm with Gilman,
Son & Co., but he had no knowledge of the execution and
delivery of either of the above-indicated notes until after
the dissolution of the partnership.
