G.B. Shaw & Co. v. Smith

• Decision Date: 07 February 1891
• Citation: 45 Kan. 334,25 P. 886
• Court: Kansas Supreme Court
• Parties: G. B. SHAW & COMPANY v. YATES SMITH et al

25 P. 886

45 Kan. 334

G. B. SHAW & COMPANY v. YATES SMITH et al

Supreme Court of Kansas

February 7, 1891

Error from Cowley District Court.

THE opinion states the facts. Judgment for defendants Smith and another, at the December term, 1887. The plaintiffs G. B. Shaw & Co. bring the case here.

Judgment affirmed.

Samuel Dalton, and Samuel J. Day, for plaintiffs in error.

S. E Fink, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought before a justice of the peace of Cowley county on January 31, 1887, by G. B. Shaw & Company against Yates Smith and James W. McClellen, for the recovery of $ 12 and interest, upon the following instrument in writing, to wit:

"CAMBRIDGE April 30, 1886.

"On or before the first day of October, 1886, we promise to pay to the order of G. B. Shaw & Co., at their office in Cambridge, twelve dollars, for value received, with interest after maturity, at the rate of 10 per cent. per annum, until paid.

"This note is given in part consideration of the sale to Y. Smith of eight bushels flax seed, by said G. B. Shaw & Co., and as a further consideration therefor, we agree to plant fourteen acres with said seed, to cultivate, harvest and clean the same in proper and careful manner, and deliver to G. B. Shaw & Co., at Cambridge, Kansas, on or before the first day of December, 1886, the whole crop raised therefrom, at a price mentioned below per bushel of fifty-six lbs., for pure and prime flax seed. Flax seed not pure and prime to be inspected and graded subject to the rules of the St. Louis Merchants' Exchange; and should we sell or trade, or attempt to offer to sell or trade such crop to any other person or persons than said G. B. Shaw & Co., or order, then the note hereto attached shall immediately become due and payable; and the said G. B. Shaw & Co., or their assigns, are hereby authorized to enter any building or premises without any legal process whatever, and seize and remove such crop whatsoever (and in whosoever's possession) the same may be found; and to pay me the balance on demand, after the amount due upon said note has been deducted, together with all costs and expense incurred, where seizure is necessary.

"Price to be paid per bushel on basis of pure, to be 35 cents less than St. Louis market price on day of delivery.

YATES SMITH.

JAMES W. MCCLELLEN."

Afterward the case was taken on appeal to the district court, where the case was tried before the court and a jury, with the result hereafter stated. The plaintiff's bill of particulars simply set up the foregoing instrument, and asked judgment thereon for $ 12, and interest at the rate of 10 per cent. per annum from October 1, 1886. The defendants' amended answer thereto and cross-petition alleged that the flax seed for which the instrument sued on was given was purchased by Smith for the purpose of sowing it and raising a crop; that it was warranted by the plaintiffs to be good, but that it was worthless; that he (Smith) sowed it, but that it did not germinate; and that he lost his time, labor, and use of his ground; and that he was damaged thereby in the sum of $ 150, and he asked judgment for that amount and costs of suit. The trial resulted in a verdict in favor of the defendants and against the plaintiffs for the sum of $ 90, and judgment was rendered accordingly, and the plaintiffs, as plaintiffs in error, bring the case to this court for review.

It appears from the evidence that the facts of the case are substantially as follows: The plaintiffs, G. B. Shaw &amp Co., were dealers in flax seed, at Cambridge, in said Cowley county. Smith went to their place of business about April 20, 1886, and found Joseph Fraley, their agent, in charge. Shaw & Co. did not have any flax seed on hand, but they were about to order some. Smith told Fraley to order eight bushels for him for the purpose of sowing it and raising a crop. Fraley told Smith that they would furnish the flax seed upon the conditions substantially as set forth in the foregoing instrument. Afterward the flax seed arrived and Fraley gave notice to Smith. Smith then, on April 30, 1886, went to Cambridge and received the seed, about eight bushels in amount, inclosed in a sack, from Fraley, and took it home and sowed it upon about twelve acres of ground. The seed appeared to be good, and Fraley and Smith believed it to be good; but in fact it was not good and it did not germinate, and Smith lost all his time and labor in procuring it, and in preparing the ground for sowing it and in sowing it, and he got no crop and lost the use of* his ground; and upon these facts the jury found in favor of the defendants and against the plaintiffs, and assessed the defendants' damages at $ 90, as aforesaid. The only questions now involved in the case are as follows: 1. Under the contract, between the parties, and under the...