Hawkins v. Windhorst

• Decision Date: 07 May 1910
• Docket Number: 16,545
• Citation: 82 Kan. 522,108 P. 805
• Parties: MILEY HAWKINS, Appellant, v. E. C. WINDHORST, Appellee
• Court: Kansas Supreme Court

108 P. 805

82 Kan. 522

MILEY HAWKINS, Appellant, v. E. C. WINDHORST, Appellee

No. 16,545

Supreme Court of Kansas

May 7, 1910

Decided January, 1910.

Appeal from Edwards district court; CHARLES E. LOBDELL, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

NEGOTIABLE INSTRUMENTS -- Consideration -- Mutual Promises -- Bank Check Given by a Purchaser -- Refusal to Accept Delivery. The mutual and concurrent promises of parties in the sale and purchase of cattle, wherein a check is given by the purchaser as a partial payment for the cattle sold constitute sufficient consideration for the check; and when an action is brought by the payee against the drawer on the protested check the drawer can not defend on the ground that no cattle were received by the purchaser, when it appears that the cattle were tendered to him and that the nondelivery of them was due to the failure of the purchaser to perform his part of the agreement.

F. Dumont Smith, and A. C. Dyer, for the appellant.

G. Polk Cline, and W. G. Fairchild, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action by Miley Hawkins to recover from E. C. Windhorst the proceeds of a bank check drawn upon her account by her husband, Fred Windhorst. There is testimony to the effect that Fred Windhorst purchased ninety-two head of cattle from Hawkins, and as part payment gave the check in suit to Hawkins; that the cattle were taken to Windhorst's, in accordance with the agreement, but he declined to receive them, and, the check having been received and protested, this action was brought. It appeared in the trial that Fred Windhorst had acted as agent of his wife in business transactions, including the issuance of checks, but to what extent and for what purposes were matters of dispute. The scope of the agency of Fred Windhorst and the means of establishing it were matters of contention at the first trial, and the judgment then rendered was reversed because of rulings rejecting evidence which tended to show that he was the agent of his wife, with authority to sign her name to a check on her account. (Hawkins v. Windhorst, 77 Kan. 674, 96 P. 48.) On the second trial evidence was received tending to show that Fred Windhorst acted for his wife in banking matters, that he deposited money in the bank in her name and drew checks against the account which were sometimes signed "E. C. Windhorst, by Fred Windhorst," and sometimes signed with his name alone. But checks signed either way were accepted by the bank and paid from her deposit and charged to her account. This course of dealing was known to Hawkins at the time the transaction was had and the check delivered to him on the contract. He states that he carried out his part of the agreement on which the check was paid by taking the cattle over to Windhorst and offering to deliver them to him. At the close of the testimony the court instructed the jury, and the following constitutes the entire charge, the last paragraph of which is the subject of complaint:

"For plaintiff to recover in this case he must prove to your satisfaction, by a preponderance of the evidence, that Mr Fred Windhorst had authority to check on his wife's account for his own transactions; second, that h...