Bohart, Dillingham & Co. v. Oberne

• Decision Date: 04 March 1887
• Citation: 13 P. 388,36 Kan. 284
• Court: Kansas Supreme Court
• Parties: BOHART, DILLINGHAM & CO. v. OBERNE, HOSICK & CO

13 P. 388

36 Kan. 284

BOHART, DILLINGHAM & CO. v. OBERNE, HOSICK & CO

Supreme Court of Kansas

March 4, 1887

[Copyrighted Material Omitted]

Error from Wyandotte District Court.

BOHART DILLINGHAM & COMPANY brought an action in the district court of Wyandotte county against Oberne, Hosick &amp Company, alleging that on July 5, 1883, the defendants sold to the plaintiffs certain property which was evidenced by a writing executed by the defendants and delivered to the plaintiffs, which is as follows:

"KANSAS CITY, Mo., July 5, 1883.--This is to certify, that we, the undersigned, have this day sold to Bohart, Dillingham &amp Co. our interest and title to the following property, consisting of meats, lard, wagons, horses and harness, book accounts, and fixtures in meat market No. 914, Mulberry street, Kansas City, Mo., for the sum of one thousand and five dollars, for which we acknowledge the receipt of payment; and we further bind ourselves to secure them in the above property, and to protect them against any claims against said property.

(Signed) OBERNE, HOSICK & CO.

JOHN ELDRIDGE, Manager."

It was alleged that, among the book accounts mentioned in the written instrument, a certain number of them, amounting in the aggregate to $ 1,240.39, were not due to the defendants at the time they were sold to the plaintiffs, and that the parties against whom the accounts were charged had either paid off the same in full, or had offsets against the accounts sufficient to liquidate each and all of them. The plaintiffs further alleged that defendants had failed to secure them in the amount of said accounts against the claims of payments and offsets against said accounts, in accordance with the terms of the written agreement, and that by reason thereof the defendants were indebted to the plaintiffs in the sum of $ 1,240.39, for which they asked judgment. The answer of the defendants was a general denial, and also that John Eldridge, whose name purports to be signed to the written agreement, never had any authority from the defendants to execute the instrument, or any other of like nature. In reply, the plaintiffs alleged that the defendants ratified the acts of their agent, John El- dridge, in the sale of the accounts and other property to them. The cause was referred to L. W. Keplinger, as referee, who reported the following findings of fact and conclusions of law:

"1. At the time of the transactions involved in this case the defendants were, and for some time had been, engaged in the hide and wool business, in the city of Chicago, state of Illinois.

"2. Defendants had numerous branch offices or places of business in various parts of the country, one of which was in Kansas City, Kansas, in charge of John Eldridge as general manager with authority to purchase hides, wool, furs and tallow, and pay therefor with funds furnished by defendants; also, one J. Hosick, who is the father of one of the defendants, was the book-keeper of defendants at said Kansas City branch office.

"3. Withrow & Deo were proprietors of a meat market at Kansas City, and from time to time said Withrow & Deo sold and delivered hides, furs and tallow to said Eldridge as agent of defendants.

"4. One George Foster was the predecessor of Withrow & Deo in the meat market, and one Smith was the predecessor of Eldridge in the management of defendants' Kansas City branch; and at one time, while said Smith was such manager and while said Foster was proprietor of said meat market, said Smith made a loan of three hundred dollars on behalf of defendants to said Foster, with the knowledge and by authority of defendants.

"5. Except as stated in the foregoing finding, said branch office was never authorized to pay out any money save in payment for articles authorized to be purchased for defendants.

"6. From about the 12th or 13th of December, 1883, the parties in charge of said Kansas City branch advanced money of defendants to the amount of $ 300 to Withrow & Deo, and at the said last-named date took the note of said Withrow & Deo for said sum, which note was drawn payable to defendants, all of which was in the absence and without the knowledge or assent of defendants.

"7. From time to time after the taking of said note the said Eldridge, and Hosick, book-keeper, advanced other moneys belonging to defendants to said Withrow & Deo, without the knowledge or authority of defendants.

"8. About one month prior to the execution of the instrument sued on, one of the defendants visited the branch at Kansas City and examined the books and the account with said Withrow & Deo, and directed that the same be closed up and settled, and forbade the making of any further advances; but after the giving of such order, said Eldridge & Hosick continued to make further advances to the additional amount of about five or six hundred dollars, without authority of defendants. The total of such unauthorized advances finally reached the sum of about $ 1,300. At the time of making such advances, the said Withrow & Deo agreed to repay the sums by selling to defendants' agent at said branch, hides, wool and tallow for defendants, but said advances were never repaid in that or in any other manner, save as hereinafter set forth.

"9. A day or two prior to the execution of the instrument set forth in the petition, Withrow & Deo executed bills of sale, which purported to convey to defendants all the book accounts of said Withrow & Deo, due from various parties to said Withrow & Deo, together with other articles of personal property mentioned in said instrument; and at the time of so doing said Withrow & Deo delivered to said Eldridge the book containing the amounts of those who were indebted to the said firm, as well as those to whom that firm was indebted; this transfer was on account of the indebtedness of said Withrow & Deo, on account of said advances; the said Eldridge within a day or two thereafter executed to plaintiffs the instrument mentioned in the petition, and credited the account of said Withrow & Deo for the amount received therefor, and thereafter accounted to defendants personally for the remainder of such indebtedness remaining still unsatisfied.

"10. Of the accounts set forth in the list attached to plaintiffs' petition, a small portion were true accounts of amounts due said Withrow & Deo, but a large part of said accounts, amounting to $ 1,160, did not represent any amounts due said Withrow & Deo, but accounts to that amount appear in said list as being due from parties to whom said Withrow & Deo were indebted; but at the time of the execution of the instrument mentioned in the petition said Eldridge gave all of said accounts to plaintiffs as being the accounts referred to in and intended to be transferred by said agreement.

"11. The property mentioned in the instrument sued on, exclusive of book accounts, was of the value of about $ 300, and the same was, soon after the execution of said instrument, sold and disposed of by plaintiffs.

"12. The plaintiffs in payment for the purchases evidenced by said instrument sued on, credited defendants with the sum of $ 45 due from defendants to plaintiffs on account, and also delivered to J. Hosick, the book-keeper before mentioned, a check for the sum of $ 1,005,...