Hester v. Smith

• Decision Date: 11 May 1895
• Citation: 40 P. 310,5 Wyo. 291
• Parties: HESTER v. SMITH ET AL
• Court: Wyoming Supreme Court

40 P. 310

5 Wyo. 291

HESTER v. SMITH ET AL

Supreme Court of Wyoming

May 11, 1895

Commenced in District Court July 26, 1893.

ERROR to District Court for Natrona County, HON. JOHN W. BLAKE Judge.

George W. Hester and V. A. Hester, co-partners as Hester & Son brought suit against Lew Smith, Edgar B. Shaffner, and John B. Okie, co-partners as L. Smith & Co., bankers, to recover the balance of the purchase price of oats sold by the plaintiffs, and claimed to have been purchased by the defendants. The defendant Okie alone appeared in the district court. Judgment was, however, rendered in favor of all the defendants. The plaintiffs brought error, and caused summons in error to be issued against all the above named defendants as defendants in error, but it was not returned, and no showing was made that either Smith or Shaffner were served and they did not enter their appearance in any manner. On the trial in answer to a direct question as to whether he had had any dealings with L. Smith & Co., bankers, G. W. Hester testified that he had. He, then, in explaining the transaction, stated that having shipped a car load of oats to Casper to another party, who wished for time, which was not agreeable to plaintiffs, he visited Casper and met Mr. Smith; that, in their conversation, the latter said, "We are running a bank here," and, again, "You will run no risk; you will be safe in your money; you will get your money for the oats." The oats were delivered to Smith. The witness, when not giving an explanation of the particular circumstances, stated that the oats were sold to the firm of L. Smith & Co., bankers. He also said that Smith paid the freight. On cross-examination he would not say that he was sure he sold the oats to the banking firm, but did say that he relied on the bank for his pay. There was evidence that Virgil Hester, one of the plaintiffs, had, after the sale of the oats, visited Casper, and stated he was a creditor of the Smith Mercantile Company. There was no evidence that the banking firm had received the oats, or any of the proceeds thereof, except that some money was deposited in the bank to the credit of Hester, which was deposited by the Smith Mercantile Company, as the defendant Okie testified he was informed. This money was paid to plaintiffs. The other facts are sufficiently stated in the opinion.

Judgment affirmed.

Allen G. Fisher and George Walker, for plaintiffs in error, contended that the judgment was not sustained by the evidence, and that the motion for new trial on the ground of newly discovered testimony should have been granted.

Alex T. Butler and Burke & Fowler, for defendant in error, John B. Okie.

The court will not reverse a decision of a trial court, there being evidence to sustain it. (Bank v. Dayton, 1 Wyo. 336; id., 352; id., 17; 2 id., 113; 3 id., 325; id., 57; id., 164.) If one of several defendants suffers default, and another maintains a defense which negatives plaintiff's right to recover against either of the defendants, the plaintiff will not be entitled to judgment against the one who has defaulted, but the successful defense will enure to the latter's benefit. (Black on Judg., sec. 209; Miller v. Longacre, 26 O. St., 291; Pierson v. David, 4 Ia., 410.) A new trial will not be granted to afford an opportunity to introduce merely cumulative testimony. (Link v. R. R. Co., 3 Wyo. 680; 1 Yaples Code Pr., 553; Reed v. McGrew, 5 O., 375; Perrin v. Ins. Co., 11 O., 147; Laeffner v. State, 10 O. St., 598.)

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

Plaintiffs shipped from Harrison, Nebraska, in their own name, a car load of oats to Casper, intending them for a purchaser upon whom a sight draft had been drawn, attached to the bill of lading, and sent through the bank of C. H. King & Co. This expected purchaser not taking the oats, George W. Hester visited Casper and there met Lew Smith, one of the defendants, with whom a sale of the oats was consummated. Smith received them and paid the freight thereon.

Although it does not clearly appear, it seems to be disclosed by the evidence that the oats were taken to a store commonly referred to in the testimony as the Mercantile Company's store, the business of which was usually transacted by Smith. He was also a member of the firm of L. Smith & Co., bankers. It is attempted to make the banking firm of L. Smith & Co., of which firm J. B. Okie was also a member, responsible for the purchase price of the oats.

The only fact which we find in the evidence at all tending to connect that firm with the purchase is in the testimony of George W. Hester, who says that while he and Smith were discussing the matter of the sale, and before it was consummated, the latter said to Hester: "We are running a bank here," and also, "You will run no risk; you will be safe in your money; you will get your money for your oats." We are unable to discover any testimony showing or tending to show that the banking firm ever received the oats or any of them; or any of the proceeds thereof, except the sum of $ 55.00, which, Mr. Okie testifies, was deposited in the bank to the credit of G. W. Hester, and was by Okie, who, afterwards, it seems, had assumed the obligations of the bank, paid to Virgil Hester. Okie testifies that Smith informed him this deposit had been made by "the store" to the credit of Hester; but there is no direct testimony covering the matter of the original deposit. Okie testified that when he paid the $ 55.00 to Hester the latter informed him that they had sold some oats to the mercantile company. There is testimony that statements were made by each of the plaintiffs to the effect that they had sold the oats to the mercantile company, and a witness connected with C. H. King & Co. testified that Hester & Son had at one time drawn a draft on the Smith Mercantile Co. for $ 350.00, which was received by C. H. King & Co. for collection and was returned on the same day.

The total amount for which the oats and some sacks were sold was $ 353.00.

Smith paid the freight, $ 36.40, which was apparently to be credited on the price, and with the $ 55.00 subsequently received on account of the deposit in the bank, leaves the balance sued for as $ 261.60.

Neither Smith nor Shaffner appeared in the suit below. The...