Campbell v. Faxon

• Decision Date: 12 May 1906
• Docket Number: 14,606
• Citation: 85 P. 760,73 Kan. 675
• Parties: JAMES A. CAMPBELL v. FRANK A. FAXON et al., as Partners, etc
• Court: Kansas Supreme Court

85 P. 760

73 Kan. 675

JAMES A. CAMPBELL v. FRANK A. FAXON et al., as Partners, etc

No. 14,606

Supreme Court of Kansas

May 12, 1906

Decided January, 1906.

Error from Doniphan district court; WILLIAM I. STUART, judge.

STATEMENT.

ACTION by the firm of Faxon, Horton & Gallagher to recover for drugs purchased for the "Elk Pharmacy," in Kansas City. C. F. McCormick owned a drug-store and employed R. E Ela, jr., as his agent and manager of the store. A few months afterward McCormick died, and J. A. Campbell was appointed administrator of the estate. Campbell took possession of the drugstore, inventoried the stock, and agreed with Ela to continue the business upon the same plan as it had been conducted in McCormick's lifetime. The business was continued for about six months, during which time the goods in suit were purchased, but as it was not a success it was discontinued and the stock of drugs was sold to Mrs McCormick. The written agreement under which the store was managed by Ela prior to McCormick's death is as follows:

"Know all men by these presents, that R. E. Ela, jr., of Kansas City, Kan., party of the first part, and C. F. McCormick, of Kansas City, Mo., party of the second part, have entered into this agreement on the 1st day of February, 1903, witness as follows:

"That R. E. Ela, jr., party of the first part, and C. F. McCormick party of the second part, have entered into a contract this 1st day of February, 1903, that R. E. Ela, jr., is to be the manager of said drug-store now owned by C. F. McCormick, located in Kansas City, Kan., on lot two (2), block three (3), No. 1932 Walnut Park addition. It is agreed between the parties that R. E. Ela, jr., is to be in full charge of the store and have full control of its management and to be its manager; and it is further agreed between the parties to this contract that C. F. McCormick is the sole owner and proprietor of all stock, merchandise and fixtures in said store. It is further agreed between the party of the first part and the party of the second part that the stock of goods shall be kept up to the invoice price which the goods invoiced on or about the 1st of October, 1902; and it is further agreed that the amount of stock, including medicines, drugs, sundries, fixtures, other goods, and merchandise, shall always be equal and amount to invoice price which the goods invoiced on or about the first days of October, 1902. It is further agreed and consented on the part of R. E. Ela, jr., that he will put in all of his time, energy and efforts to control such business, and that he will not engage in any other business while this contract is in effect, but give his whole time and attention to the management of the store now subject of this contract.

"It is further agreed that R. E. Ela, jr., shall have full charge of said store, and that R. E. Ela, jr., of the first part, out of the proceeds of the business shall pay all expenses in operating the store, including light, fuel, water, and insurance. It is further agreed that R. E. Ela, jr., is to pay C. F. McCormick, party of the second part, eight per cent. per annum on five thousand ($ 5000) dollars; to be paid on the 25th of each month. The first payment is to be paid February 25, 1903. The amount to be paid each month is thirty-three (33 1/3) dollars, and the payment of thirty-three (33 1/3) dollars is to be paid as long as this contract is in force. R. E. Ela, jr., is to have all of the profits the store makes after paying the eight per cent. per annum monthly payments to C. F. McCormick, of the second part, and that the party of the first part shall draw no salary whatever.

"It is further agreed by and between the parties hereto that the party of the second part shall have the privilege and reserve the right to put an end to and terminate this contract any time if he believes the business is not running satisfactory. It is further agreed on the part of the party of the first part that the party of the second part [shall have] the right to sell, convey and dispose of this stock of merchandise at any time that he can secure a buyer for the same, and also and take immediate possession of said stock when he has found a buyer.

"It is further agreed by party of the second part that R. E. Ela, jr., is to have an option on buying said stock if it is to be sold or disposed of; option good for thirty days.

"It is further agreed between party of the first part and party of the second part that second [party] can make a weekly inspection of the books and examine the stock and demand an accounting at any time desired.

"It is further agreed that R. E. Ela, jr., party of the first part, and C. F. McCormick, party of the second part, that first party can terminate this contract at any time he desires.

"IN WITNESS WHEREOF, Parties hereto set their hands and affix their seal, on the day and year first above written.

R. E. ELA, JR.

C. F. MCCORMICK."

The goods purchased of plaintiffs under the Campbell regime were not paid for, and hence this action was brought and a recovery had against Campbell.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Master and Servant--Termination by Death. A contract that one party was to be the managing agent of a drug-store owned by another, which might be terminated at any time by either party, and in which it was agreed that instead of a salary the agent's compensation should depend upon the extent and success of the business, created a personal relation which was dissolved by the death of one of the parties, and was without binding effect upon the administrator of his estate.

2. ADMINISTRATORS--Conducting Decedent's Business without Authority--Liability. In the absence of a testamentary direction an administrator...