Greer Machinery Co. v. Sears

• Decision Date: 05 February 1902
• Citation: 119 Ky. 697,66 S.W. 521
• Parties: GREER MACHINERY CO. v. SEARS et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 521

119 Ky. 697

GREER MACHINERY CO. v. SEARS et al. ^[1]

Court of Appeals of Kentucky.

February 5, 1902

Appeal from circuit court, Pulaski county.

"Not to be officially reported."

Action by the Greer Machinery Company against J. L. Sears and another on a contract of guaranty. Judgment for defendant Sears, and plaintiff appeals. Reversed.

W. A Morrow and J. R. Cook, for appellant.

Paul &amp Porch and Waddle & Son, for appellee.

BURNAM J.

In September, 1898, the Greer Machinery Company, of Knoxville Tenn., proposed, in writing, through its agent, to C.J Chandler, of Somerset, Ky. to appoint him its agent to sell agricultural implements and machinery, and a fertilizer known as the "Greer Compound," at certain fixed and designated prices. The proposition was made upon a printed form used by the company, and one of the clauses used these words: "It is understood and hereby agreed that fertilizers and all other goods ordered by or shipped to you are to be consigned and remain our property until sold; and the proceeds of all sales, including notes, cash, and accounts, are to be held in trust for us as our property, and subject to our order. All sales of these fertilizers and other goods are to be closed by your customers' notes taken on forms furnished by us; and on the first day of November, 1898, you agree to forward these notes to us as collateral security for your note. To avoid any misunderstanding, this contract is signed in duplicate, and one copy retained by each contracting party, but is not binding until signed by the president of the Greer Machinery Company; and it may be terminated by him at any time." This proposition was accepted in writing by C.J. Chandler on the 9th of September, 1898; and on the same day J. L. Sears signed the following guaranty, which was appended to the written proposition made by Chandler: "In consideration of one dollar to me paid by Greer Machinery Co., the receipt of which is hereby acknowledged, and in further consideration of the constitution of the within-named agency by the Greer Machinery Company, I hereby guaranty to it the fulfillment of the within contract, and the payment of all obligations arising under the same on the part of C.J. Chandler. [Signed] J. L. Sears." The paper was then sent to Knoxville, Tenn., for the signature of the Greer Machinery Company. Upon this contract and guaranty the company instituted this suit in the Pulaski circuit court on the 3d day of January, 1900; it being alleged that during the years 1898 and 1899 plaintiff had consigned to the defendant Chandler goods of the value of $681.20, on which he had turned over to the plaintiff notes amounting to $268.20; that the defendant received the goods under the contract, and had failed and refused to turn over the proceeds of the sale thereof, and asked judgment against both Chandler and Sears for $413. No defense was made by Chandler, and Sears answered in two paragraphs, denying liability. In the first paragraph he denied that the contract with Chandler had ever been signed by the president of the company, as provided in the agreement; and in the second paragraph he alleged that he had never received, and appellant had not given him, any notice of the acceptance of the contract, or consignment or delivery of the goods to Chandler for which suit was brought. A demurrer was filed to the second paragraph and overruled, and appellant replied, admitting that it had given no notice to the defendant Sears of the acceptance of the contract of the defendant Chandler, but denied that he had not received such notice, or that he had not received notice of plaintiff's having consigned to Chandler the goods set up and referred to in the petition, and avers that its acceptance of the guaranty on the part of the defendant Sears, and the consignment of the goods, were both well known and understood by him. Upon these pleadings and the following instruction of the court the case was tried: "Instruction. Gentlemen of the jury, you will find for the defendant in this case, unless you believe from the evidence that, before the fertilizer was delivered to the defendant Chandler, the president of the Greer Machinery...