Hartz v. Page

• Decision Date: 10 June 1929
• Parties: HARVEY E. HARTZ, RESPONDENT, v. CHARLES G. PAGE, APPELLANT. [*]
• Court: Kansas Court of Appeals

20 S.W.2d 701

224 Mo.App. 83

HARVEY E. HARTZ, RESPONDENT, v. CHARLES G. PAGE, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

June 10, 1929

Appeal from Circuit Court of Jackson County.--Hon. Ralph S. Latshaw Judge.

AFFIRMED.

Judgment affirmed.

Stubenrauch & Hartz for respondent.

J Walter Farrar and O. C. Phillips for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action based upon two accounts involving the purchase of corn, payment for pasturage and for services of a veterinarian, in connection with the feeding and care of certain cattle. The suit originally was directed against defendants Charles G. Page and Paul Parkyn but there was no service on Parkyn and the cause was dismissed as to him.

The amended petition upon which the cause was tried is in two counts. The first alleges Charles G. Page and Paul Parkyn were partners in the business of pasturing and feeding cattle and speculating in the same; that for a number of years they had been feeding and pasturing cattle on the farm of one John Anders near Bertrand, Gasper County, Nebraska; that during the years 1925 and 1926, they pastured their cattle on the Anders farm, for the use of which they agreed to pay the sum of $ 283; that defendants purchased 2284 bushels and forty pounds of corn from Anders, for which they agreed to pay fifty seven cents per bushel; that on July 14, 1926, defendant Parkyn gave to said Anders a draft on defendant Page for the sum of $ 1595.29, to cover both the pasture and the corn, but that Page refused to pay the draft; that the amounts charged for said pasturage and corn at the time they were furnished and sold were reasonable and of the fair market value; that defendants promised and agreed to pay same, but though often requested, they have failed, refused and still fail and refuse to pay same and every part thereof; that on September 1, 1926, said John Anders, for value, assigned and transferred said claim to plaintiff and that plaintiff now is the owner and holder thereof.

The second count, after repeating the allegations as to partnership contained in the first, alleges Dr. C. J. Sall is a veterinarian located at Bertrand, Nebraska, and that he furnished medicine and professional services amounting to $ 144.90, in doctoring the cattle and caring for them. The assignment of this claim for value is alleged. Certain items in this account were eliminated at the trial and the amount as finally presented to the jury was $ 102.85. Judgment was asked on each count in the amount alleged.

The answer of defendant Page admits he was interested in certain cattle fed by Paul Parkyn on the Anders land under contract with Parkyn, by the terms of which Page agreed to advance the purchase price of the cattle; that Parkyn agreed to furnish the feed, medical services and care for them and after the money advanced was repaid, the net profits were to be equally divided between them; that whatever corn was purchased from John Anders was under contract between said Parkyn and Anders and that this defendant did not contract, nor authorize anyone to contract for him as his agent for the purchase of corn. The answer to the second count is a denial that the medicines and services were furnished at the request of defendant, or of anyone authorized to contract for him, and states these items were to be furnished by Parkyn who was to be repaid only out of the proceeds of the cattle.

Peremptory instruction as to both counts were asked by defendant at the close of plaintiff's evidence and again at the close of all the evidence, but were refused and the cause was submitted to the jury. The verdict was for plaintiff in the sum of $ 1585.29 on the first count and $ 102.85 on the second. Judgment was entered accordingly and defendant appeals.

The evidence shows defendant Page was a live stock commission merchant doing business at the Kansas City Stock Yards; that Paul Parkyn was a tenant on the farm of John Anders near Bertrand, Nebraska, and that on or about October 1, 1922, said Page and Parkyn entered into a contract whereby Page was to furnish the money and Parkyn to feed cattle. It appears Parkyn leased from Anders 230 acres of corn land as well as some pasture from Anders; that Parkyn raised wheat, corn and cattle and had some horses and a few cattle of his own, individually. Joint notes and chattel mortgages for the purchase of the cattle to be fed were executed by Page and Parkyn. Parkyn raised some of the feed on the Anders land and bought some of others, drawing drafts on Page in payment therefor and these were accepted and paid by Page; and on one occasion Parkyn paid the freight charges on cars of feed by sight drafts on him. When ready for the market, after being fattened or conditioned by Parkyn on the farm, the cattle were shipped to the Kansas City market where they were sold, and Page and Parkyn shared equally the profits and losses thereon. The testimony shows the partnership began about October 1, 1922, and ended early in the year 1926.

There were about fifteen of these joint notes and mortgages introduced in evidence by plaintiff. It appears that at the beginning of the contract arrangement, these notes and mortgages were signed by Page and Parkyn individually, but later and during the years 1924 and 1925, they were generally executed by Page for the partnership, Page making affidavit that the stock belonged to the partnership of Page and Parkyn. At the trial Page produced his books which contained an account designated therein as Page and Parkyn account, covering the entire period from October 1, 1922, until its termination in 1926. This account showed that in paying for the feed and care of the cattle Parkyn gave drafts on Page to the various growers from whom the corn, hay or other feed was purchased, and that the amount of such drafts was charged to the Page and Parkyn account, as a charge against the cattle. This account showed drafts given for everything connected with the cost and expense of feeding and caring for the cattle, including drafts given John Anders and Dr. Sall during each year of the alleged partnership.

It is also shown in evidence that Page had a personal account on his books with Parkyn and in order for Parkyn to receive payment for corn which he, himself, raised and fed to the partnership stock, credit was given for such amount on this personal account; and the item charged to the Page and Parkyn account. This account shows that on March 31, 1924, Parkyn received credit for corn which he raised and fed to the partnership stock in the sum of $ 1997, and on the same date the Page and Parkyn account was charged with the amount as expense against the stock. The same was true in varying sums on August 13, 1924, $ 62.70; April 2, 1925, $ 3200, and on February 17, 1926, on which date the last bunch of cattle was shipped to Kansas City, Parkyn received credit on his personal account for 3160 bushels of corn at fifty-five cents a bushel, $ 1738, which was charged on the same date to the Page and Parkyn account against the partnership cattle.

Plaintiff introduced in evidence depositions of witnesses from Bertrand, Nebraska, who testified to various sales of corn and feed made by them to Paul Parkyn during the period covered by the alleged partnership, and stated that in payment therefor Parkyn always gave them drafts on Page at Kansas City, Missouri. The station agent of the Burlington Railroad at Bertrand also testified by deposition that he was always paid in the same manner for items due the railroad during the period. The Page and Parkyn account showed all these items debited against the partnership cattle.

The testimony shows there were a number of accounts left unpaid after the last of the cattle belonging to the alleged partnership were shipped back to Kansas City, among which are the two items here involved. It is in evidence that Parkyn attempted to pay Anders' bill by giving a draft on Page in the same manner as before, but Page refused to honor the draft.

On behalf of defendant it was shown that the lease of the land was in writing and was from Anders to Parkyn personally, and it was contended that Anders and Dr. Sall had given sole credit to Parkyn for the corn and medical services furnished by them respectively. Page, in his own behalf, testified the contract between him and Parkyn entered into in 1922, was oral and under it Page was to furnish the cattle and Parkyn to feed them; that he (Page) sometimes lent money to Parkyn and at other times could not, with which to purchase feed for the cattle; that witness had no knowledge as to whether the corn bought from Anders was fed to the cattle or not; that he had no interest in the farming operations of Parkyn; that in 1925, Parkyn told witness he could furnish the feed for 100...