Greep v. Bruns

• Decision Date: 09 June 1945
• Docket Number: 36333.
• Citation: 160 Kan. 48,159 P.2d 803
• Parties: GREEP v. BRUNS et al.
• Court: Kansas Supreme Court

159 P.2d 803

160 Kan. 48

GREEP v. BRUNS et al.

No. 36333.

Supreme Court of Kansas

June 9, 1945

Rehearing Denied July 13, 1945.

Appeal from District Court, Clay County; Edgar C. Bennett, Judge.

Action by Fred Greep against Reno Bruns and another to recover value of wheat delivered to an elevator. From the judgment plaintiff appeals.

Syllabus by the Court.

1. On demurrer the determination of what constitutes agency and whether there is any competent evidence reasonably tending to prove its existence is a question of law.

2. When under the pleadings the relationship of principal and agent is in issue the party relying thereon to establish his claim or demand has the burden of establishing its existence by competent evidence.

3. The law recognizes two distinct types of agencies, one actual and the other ostensible or apparent.

4. The authority of an actual agent may be either express or implied. It is express if the one sought to be charged has delegated authority to the agent by words which expressly and directly authorize him to do a delegable act. It is implied if from statements of the parties, their conduct and other relevant circumstances it appears the intent of the parties was to create a relationship permitting the assumption of authority by an agent which when exercised by him would normally and naturally lead others to believe in and rely on his acts as those of the principal.

5. An ostensible or apparent agent is one whom the principal has intentionally or by want of ordinary care induced and permitted third persons to believe to be his agent even though no authority, either express or implied has been conferred upon him.

6. A demurrer to the evidence can only be sustained when the court is able to say, admitting every fact proven which is favorable to plaintiff and giving him the benefit of those which are fairly and logically to be inferred from the evidence favorable to him, that notwithstanding their existence such plaintiff has nevertheless failed to make out some one or more of the material facts required to establish his cause of action.

7. The testimony examined and held not to show either agency or partnership as claimed by the plaintiff in his petition.

8. An opening statement of a defendant, like that of a plaintiff is to be construed as a whole and the party making it is entitled to the presumption he did not intend by a doubtful or ambiguous remark to make an admission which would dispense with the necessity of proof on what otherwise appears from such statement, and from the pleadings, to be the all important and decisive issue involved in the action.

9. In the absence of evidence showing transactions of a similar character while a partnership was in existence, the sale of grain to one of the former partners, who continued to operate the business after the firm had been dissolved, under an ar rangement whereby it was to be paid for by him when the market price was satisfactory to the seller, was not in itself sufficient to bind the former partner for the sale price agreed upon even though such former partner had not given the seller actual notice of the dissolution of the partnership.

10. Where an objection is made and sustained to a question which is leading in form and the counsel propounding it fails to reframe such question or further pursue the subject to which it related, error cannot be successfully predicated upon the ground the trial court sustained objections to proper evidence.

11. Evidence of general reputation as to the existence of agency is inadmissible unless accompanied by other evidence establishing that the principal sought to be charged knew of the report and acquiesced in it.

12. Likewise inadmissible, unless supported by other testimony already properly in the case, is evidence of general reputation to prove the existence of a partnership.

C. Vincent Jones, of Clay Center (H. L. Sheppeard and Wayne W. Ryan, both of Clay Center, on the brief), for appellant.

W. A. Kahrs, of Wichita (Austin M. Cowan and Robert H. Nelson, both of Wichita, on the brief), for appellee Reno Bruns.

P. L. Edwards, of Kansas City, Mo. (W. M. Beall, of Clay Center, on the brief), for appellee Kansas Elevator Co.

PARKER Justice.

In an action to recover the agreed and reasonable value of wheat delivered to an elevator the defendants demurred to the plaintiff's evidence. The trial court overruled the demurrer of one defendant and rendered judgment against him for the full amount of the plaintiff's claim. It sustained the demurrers of all other defendants. The appeal is from the ruling sustaining the demurrers and the rendition of a judgment for costs in favor of those defendants whose demurrers were sustained.

During the spring and summer of 1942 the plaintiff and eight other individuals residing in the vicinity of Longford sold wheat to the Bruns Grain Company in that city for which they were not paid. In July 1942 the elevator was destroyed by fire and the company ceased to do business. Thereafter, the eight individuals referred to assigned their claims to plaintiff and he instituted this action against the defendants, Jesse Bruns, Reno Bruns and the Kansas Elevator Company, claiming they were jointly and severally liable for the value of all the wheat so delivered and sold by him and his assignors to the Bruns Grain Company.

Since Jesse Bruns, who was operating the elevator on all dates on which wheat was purchased, did not appeal from the judgment and the parties in the court below stipulated such wheat was worth the amount claimed at the time it was delivered, and conceded it has never been paid for, we are concerned only with allegations of the pleadings and portions of the evidence relating to the claimed relationship existing between the parties defendant on the dates liability for plaintiff's claims was incurred.

With respect to the subject just mentioned the first cause of action set forth in the petition reads:

'(2) Said The Kansas Elevator Company was at all times mentioned in the petition, a corporation, duly organized and existing under the laws of the State of Kansas, and duly engaged in the grain, feed and coal business, and buying and selling of same, at Salina, Kansas and Longford, Kansas.

'(3) At all times mentioned in the petition, the defendants herein were duly engaged together in the business of buying and selling grains, coal and feeds at Longford, Kansas, under some arrangement among themselves, by which they shared the profits and losses, the exact details of which are unknown to plaintiff, and well known to the defendants, and conducted the business at Longford, Kansas, under the trade name of The Bruns Grain Co., under which arrangement, said The Kansas Elevator Company and said Reno Bruns furnished all or most of the operating capital and the said Jesse Bruns was the local manager of the said business at Longford, Kansas, duly authorized to buy and sell grains, coal and feeds for said defendants, and to write checks upon the funds of said defendants, or otherwise to pay from the funds of defendants for same.

'(4) Plaintiff delivered to said defendants, at Longford, Kansas, within three (3) years next preceding the commencement of this suit, 919 bu. and 50 lbs. of wheat, which was at said time, of the orally agreed and reasonable value of ninety cents (.90) per bushel; and it was then and there orally agreed by and between plaintiff and said defendants, by and through their said duly authorized agent and manager, Jesse Bruns, thereunto duly authorized (but whether in writing or not, plaintiff does not know, but same is well known to defendants) that said defendants would pay plaintiff therefor, said agreed or reasonable value, and at the option of plaintiff, at the reasonable market value of such wheat at such place at such time, as plaintiff should call for the money for said wheat at said place of business. That thereafter, and before plaintiff called for said money, the said defendants, on or about July 31, 1942, closed said place of business, and have neglected and failed, and refused to pay plaintiff for said wheat; * * *.'

The petition contains eight additional causes of action, but no further mention need be made of them for the reason that plaintiff's right of recovery on each, except for allegations pertaining to dates wheat was sold to the Bruns Grain Company, the identification of persons making such sales and the subsequent assignment of their claims therefor, depends on the allegations and averments to be found in the first cause of action which by reference were made a part of all other causes of action set forth in such pleading.

Defendants, Reno Bruns and the Kansas Elevator Company, filed verified answers. In such answers they denied generally the allegations of the petition. In addition, they specifically denied they were in business with Jesse Bruns in the buying and selling of grains, coal and feeds, or that in the operation of the elevator at Longford he was acting as their agent, servant or employee, in purchasing wheat and grain from the plaintiff or his assignors.

Irrespective of whether plaintiff predicated his right of action on the theory of partnership or that of principal and agent, an examination of the pleadings makes it obvious, that before he could prevail under either theory, he must first establish that in purchasing wheat from plaintiff or his assignors Jesse Bruns was acting in some capacity as the agent of his co-defendants. A perusal of the briefs reveals the parties regarded that question as the all important one and the trial court so considered it for, in passing on the demurrers which were general in form, it specifically pointed out and based its ruling upon the proposition there...