MCELROY
J. MAHAN, P. J. dissenting.
OPINION
MCELROY, J.:
This
action was brought by defendant in error Swofford Brothers
Dry-goods Company against Hargadine-McKittrick Dry-goods
Company for the recovery of the amount due upon account for
merchandise sold to A. R. Kramer, doing business under the
firm name of A. R. Kramer & Co., the payment of which
indebtedness was alleged to have been assumed by the
Hargadine company as a part consideration for the purchase of
a stock of goods, fixtures and appliances of trade. The
defendant answered: (1) A general denial; (2) admitting the
corporate existence of the plaintiff and of the defendant;
(3) alleging that no consideration whatever was received by
defendant for making any agreement or for the assumption of
payment of the amount due plaintiff from Kramer & Co.;
and (4) alleging that whatever promises were made for the
payment of the mercantile indebtedness of Kramer & Co. by
defendant were induced through the fraud of Kramer & Co.,
and were made in ignorance of the existence of any such
indebtedness due to plaintiff.
The
plaintiff's reply was a general denial. A trial was had
to the court and a jury, resulting in a verdict for plaintiff
in the sum of $ 1078.05. A motion for a new trial was
overruled, and judgment rendered upon the verdict. The
defendant, as plaintiff in error, presents the record to this
court for review, and alleges error in the
proceedings of the trial court: First, that the court erred
in excluding competent evidence; second, that the court erred
in giving instructions to the jury and in refusing to give
instructions requested.
The
record shows that A. R. Kramer was engaged in the mercantile
business at Galena, Kan., under the firm name of A. R. Kramer
& Co.; that the Hargadine company is a wholesale
mercantile company at St. Louis, Mo.; that the Swofford
company is a wholesale mercantile house at Kansas City, Mo.;
and that the McKittrick company and A. R. Kramer, on March 2,
1896, entered into the following agreement:
"This
agreement, made this 2d day of March, 1896, between the
Hargadine-McKittrick Dry-goods Company, of St. Louis, Mo.,
and A. R. Kramer, of Galena, Kan.:
"Witnesseth,
that it is hereby understood and agreed that the stock of
goods contained in the store house known as the Gill-Prehm
block, situated in the city of Galena, Cherokee county,
Kansas, and run under the firm style of A. R. Kramer &
Co., (same being composed of A. R. Kramer individually,) is
the sole property of said Hargadine-McKittrick Dry-goods
Company, and to remain so until the following indebtedness,
amounting to fourteen thousand nine hundred thirty-five
dollars ($ 14,935.27) is paid. Same is evidenced by three
promissory notes, one due January 1, 1897, for $ 5000,
bearing interest at six per cent. per annum from date; one
note dated March 2, 1896, and due one day after date, for $
8431.24, without interest; one note dated March 2, 1896, and
due one day after date, for $ 1504.03, with interest at the
rate of six per cent. per annum -- all of said notes to be
indorsed by Mrs. Lottie Kramer, wife of A. R. Kramer.
"It
is further agreed that the said A. R. Kramer has the
privilege of paying at any time whatever cash he may raise,
on account of the note due January 1, 1897, for $ 5000.
"It
is also agreed that the note for $ 8431.24, dated March 2, 1896, and due one day after date, is
to be paid off out of the proceeds of the sales, after
deducting expenses, etc.; and after invoicing the stock at
the expiration of every six months, any balance that may
remain to the credit of A. R. Kramer & Co. is to be
applied to the payment of said note.
"It
is further agreed that the note for $ 1504.03, dated March 2,
1896, and due one day after date, is to run one year, with
privilege of renewing, but the interest on same is to be paid
annually.
"It
is further agreed that the said A. R. Kramer is to draw a
salary not to exceed sixty-five dollars ($ 65) per month, and
that the gross expense for conducting the business is not to
exceed at any one time $ 300 per month or $ 3600 per year.
The said A. R. Kramer is to make a weekly report to said
Hargadine-McKittrick Dry-goods Company, showing amount of
sales, cash on hand, expenditures for the week, and daily
deposits of money received (all such deposits being the
property of said Hargadine-McKittrick Dry-goods Company until
the foregoing sums named are paid), and to make remittances
weekly. The stock of merchandise is to be invoiced every six
(6) months, same to be taken at actual cost.
"It
is also further agreed that the said Hargadine-McKittrick
Dry-goods Company is to grant the said A. R. Kramer & Co.
a line of credit not to exceed $ 2000, as follows: $ 1500 in
dry-goods, and $ 500 purchases made from other houses. No
purchases are to be made or debt created without the
authority of said Hargadine-McKittrick Dry-goods Company. All
cash is to be remitted to the said Hargadine-McKittrick
company, and all bills to be paid through them.
"It
is also further agreed that, on the final payment of all said
notes as mentioned in this agreement, the stock of
merchandise is to be turned over to the said A. R. Kramer as
his property. The said A. R. Kramer shall at any time have
the privilege of taking
up the entire debt due the said Hargadine-McKittrick
Dry-goods Company.
"It
is also agreed that the said Hargadine-Mc-Kittrick Dry-goods
Company, through their representatives, is
to have full access to the books and everything connected
with the business at any time, without notice; and the
expense incurred for such investigation to be defrayed by the
said A. R. Kramer & Co.
"Upon
the failure of said A. R. Kramer to carry out any part of the
above agreement, it is hereby agreed that the said
Hargadine-McKittick Dry-goods Company can at any time take
possession of said stock of goods without notice.
"In
witness whereof, we have hereunto set our hands and seal,
this 7th day of March, 1896."
Pursuant
to the agreement, Kramer managed the business, submitted
weekly statements and other reports, remitted money, and at
semiannual periods submitted what purported to be invoices
with trial-balances, showing in detail the condition of the
business, and the amount of stock on hand, with a list of
creditors. The last of such semiannual statements submitted
was on August 1, 1898. The business was unsatisfactory. In
December, 1898, the Hargadine company determined to close out
the business, and, with that end in view, wrote A. R. Kramer
the following letter:
"ST
LOUIS, MO., December 3, 1898.
"A.
R. Kramer, Esq., Galena, Kan.: DEAR SIR -- We regret to
say that we feel it is necessary for the protection of our
interest that we should take possession of the stock of
merchandise which we have been running under the agreement
made March 2, 1896, in your name. You can readily see for
yourself that the business is going behind every day, and
will not support the expense of keeping it going. The expense
lately appeared to be thirty-five or forty per cent. of the
total sales, and, of course, you cannot begin to make that
much profit, and the whole thing is daily getting worse. Mr.
E. S. Purdy, one of our confidential employees, will be in
Galena Monday morning, and you will be kind enough to turn
the stock of goods to him. We have arranged
to have the same packed up and shipped without delay. It is
necessary for us to do this on rather short notice, as we
have disposed of the goods and made arrangements to deliver
them in time for the holiday trade.
"We
feel that you have worked hard and faithfully to bring this
unfortunate deal to a more satisfactory close, and are very
sorry, indeed, that it has not turned out better. We do not,
however, consider that you are responsible for the failure.
We are willing to give you a clean receipt in full for all of
your indebtedness to us on delivery of the stock of goods,
and will, of course, return you all of your notes, which, I
think, is all that you could expect under the circumstances.
"I
regret that Mr. Davis was not able to go down to attend to
this matter, as he has been familiar with it for so long, but
his physician orders him not to go out of town for several
days, and this matter will not keep. Mr. Davis, however, will
be in Galena by the end of the week or the first of the
following week, and settle up the whole matter with you.
"Mr
Purdy is authorized to say to any one to whom...
