Hays v. John v. Farwell & Co.

• Decision Date: 09 February 1894
• Parties: HAYS, Sheriff, v. FARWELL et al.
• Court: Kansas Supreme Court

35 P. 794

53 Kan. 78

HAYS, Sheriff, v. FARWELL et al.

Supreme Court of Kansas

February 9, 1894

Syllabus

1. Where the mortgagees of two chattel mortgages executed delivered, and filed multaneously upon the same personal property agree that the liens thereof shall be concurrent the mortgages become thereby tenants in common of the property so mortgaged, and I join in an action for the unlawful conversion of the same.

2. Instructions are to be considered construed together as a whole, and, if not roneous when so construed, no one of them be held erroneous.

Error from court of common pleas, Se wick county; Jacob M. Balderston, Judge

Action by John V. Farwell & Co. and oth against W. W. Hays, sheriff, for convers Plaintiffs had judgment, and defend brings error. Affirmed.

The other facts fully appear in the following statement by HORTON, C. J.

Campbell & Dyer, for plaintiff in error.

Edwin White Moore, for defendants in error.

OPINION

HORTON, C. J., (after stating the facts.)

It is insisted that the plaintiffs below had no joint interest in the property, or the proceeds thereof, and therefore that there was such a misjoinder of plaintiffs, and such a variance between the allegations of the petition and the proof, that the objections to the testimony and the demurrer thereto should have been sustained. The proof showed that the notes and mortgages were all executed on the same day, and filed at the same time, and that there was a verbal agreement between Farwell & Co. and Skinner that the liens should be concurrent. It is the rule that where two or more parties have a joint interest in personal property which is injured, or if the right interfered with is a right possessed by two or more in common, they must all join in an action for the interference with it. "The concurrent execution and delivery of two chattel mortgages upon the same property to different parties makes the mortgagees tenants in common of the property mortgaged, and they should join in an action for the unlawful taking or the conversion of it." Welch v. Sackett, 12 Wis. 243; Hill v. Gibbs, 5 Hill, (N.Y.) 56. We think, therefore, that under the evidence offered the plaintiffs below had such a joint interest in the property converted as permitted them to jointly bring the action, and that there was no fatal variance between the allegations of the petition and the proof.

It is next insisted that the instructions of the court were erroneous and misleading. In August, 1887, Wilson went to Chicago, to see Farwell & Co., to whom he was indebted in a large amount. They agreed upon a plan by which the creditors of Wilson & Fox, of which Farwell was the largest, would release Fox and take Wilson alone. It was also arranged to form the partnership of W. J. Wilson & Co. At Chicago Farwell & Co. drew up and gave to Wilson a letter, of which the following is a copy: "John V. Farwell & Company, Chicago, New York, Manchester, Paris, Credit Department. Chicago, August 20th, 1887. Gentlemen: After examining thoroughly the affairs of Messrs. Wilson & Fox, of Wichita, Kansas, we are of the opinion that the contemplated dissolution of partnership will be for the benefit of all parties concerned. We are satisfied that after the dissolution Mr. W. J. Wilson will have a surplus of at least $25,000.00 in his business, and we are entirely willing to release T. L. & J. B. Fox, and hold our present claim, against Wilson & Co. against W. J. Wilson only. Yours, truly, John V. Farwell & Company." Afterwards, at Wilson’s solicitation, this letter was signed by J. H. Walker & Co. Wilson went from Chicago to New York. It is claimed by defendants that he showed the farwell letter to Blumenthal Bros., of whom Wilson & Fox had ordered in the spring of 1887 a bill of goods amounting to about $2,000; that by the letter Wilson induced them to ship the goods ordered by Wilson & Fox to W. J. Wilson & Co., and also to sell him on credit a bill of goods which was...