Fox v. Campbell
| Decision Date | 08 July 1892 |
| Parties | T. L. Fox et al. v. JAMES E. CAMPBELL et al |
| Court | Kansas Supreme Court |
Error from Sedgwick Common Pleas Court.
ACTION by Campbell and three others, partners as Mason, Campbell & Co., against Wilson & Fox, on an account for goods sold. Verdict and judgment for plaintiffs, at the November term, 1889. Defendants bring error.
Judgment reversed.
Smyth & Douglass, for plaintiffs in error:
When a demurrer is properly sustained, it is the duty of the court to submit the question of damages to the jury, under proper instructions. In this case the court erred in assessing the damages and instructing the jury to return a verdict for the plaintiffs for the damages thus assessed by the court. Jones v. Ireland, 4 Iowa 63.
A demurrer to the evidence not only admits the truth of the facts found, but admits every fact and every conclusion in favor of the other party which the evidence most favorable to him conduces to prove, or which the jury might have inferred from it in his favor. Jones v. Ireland, 4 Iowa 63; Christie v. Barnes, 33 Kan. 317.
Assuming that the court properly entertained the demurrer in this case, measured by the rule stated, was there sufficient evidence to have warranted the court to submit the case to the jury? Where one of two joint debtors or a third person purchases property, and as a part of the consideration therefor assumes and agrees to pay the debt of the grantor due another, as between these parties the purchaser becomes the principal debtor and the seller occupies the position of a surety. Calvo v. Davies, 73 N.Y. 215; Murray v. Marshall 94 id. 611; Spencer v. Spencer, 95 id. 353. There is no conflict in the evidence as to the sale and assumption in this case. The correspondence clearly proves an extension of four months to W. J. Wilson & Co., and the evidence clearly shows that it was without the knowledge or consent of the plaintiffs in error. The defendants in error had full and sufficient notice of the transactions between the plaintiffs in error and W. J. Wilson & Co. Here, then, new parties were introduced into the firm and assumed the liability for the goods, a new acceptance is given, a change is made in the form, terms and time of payment. This was all that was necessary to release the plaintiffs in error, and the court should have submitted the case to the jury. Eagle Mfg. Co. v Jennings, 29 Kan. 657.
We think the court committed prejudicial error in entertaining and sustaining the demurrer of the plaintiffs, and in overruling and refusing plaintiffs' motion for a new trial.
J. D Houston, and W. H. Boone, for defendants in error:
But suppose a little time had been granted Wilson beyond the date the bill was due: would this release Fox? There are no cases in the reports to that effect. Such doctrine would be unreasonable and unjust. The cases cited by counsel are not in point, even if they were in harmony with the great current of authority, which they clearly are not. 11 S.W.1063; 12 id 51. Even if Fox had actually proven an actual agreement with Mason & Co. for a release, there is no shadow of testimony to show any consideration for such agreement. Therefore the decision in 29 Kan. 657 is conclusive on the question. There is no evidence that Mason & Co. knew of any new partner, or accepted anyone in place of Fox.
Counsel cite 73 N.Y. 215 to show that Fox was released by extension, on the ground that Fox was only surety; but it says, on page 217, "if, in an agreement between a creditor and the principal debtor, extending the time of the payment, the remedies against the surety are reserved, the agreement does not operate as an absolute, but only as a qualified and conditional suspension of the right of action." "The stipulation in that case is treated in effect as if it was made in express terms, subject to the consent of the surety, and the surety is not thereby discharged."
Now read "Exhibit E," in latter part of letter to Wilson, granting extension, September 28, 1887:
This places Mason, Campbell & Co. within the rule very clearly. One of the conditions of the extension to Wilson was, that he was to get consent of Fox; if he did not, the extension was certainly not binding on Fox, or Mason & Co. It reserved all rights against Fox, at least. So, if the authorities counsel cite are sound in the main proposition, even yet the exception laid down clearly absolves Mason & Co.
As to 94 N.Y. 611, it is not at all in point. Neither is 95 N.Y. 353. Counsel cite no other authorities.
The following late authorities are conclusive on all the questions involved in this action: 29 Kan. 657; 25 P. 462; 30 Ohio St. 389; 1 Bates, Part., § 534; 12 S.E. 708; 74 Am. Dec. 429; Story, Part., §§ 153, 158. See French v. Griffin, 10 S.E. 166; 17 Am. & Eng. Encyc. of Law, 1150; 20 N.E. 163.
The taking in of a new partner by Wilson, after the dissolution with Fox, cannot be urged to show a consideration for releasing Fox, for "an incoming partner is not liable for the previous debts of the old firm unless he makes himself so by express agreement, and by such conduct as will raise the presumption of a special promise." 17 Am. & Eng. Encyc. of Law, 1116. Now, there is no evidence to show any agreement of any new party to pay Mason & Co.'s debt. And, moreover, there is no evidence to show that Mason & Co. agreed to release Fox and accept any incoming partner in his stead, even if there should have been an incoming partner. The authorities are uniform in...
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