J. I. Case Co. v. Sinning Bros. Motor Co.

• Decision Date: 06 May 1933
• Docket Number: 31096.
• Citation: 137 Kan. 581,21 P.2d 328
• Parties: J. I. CASE CO. v. SINNING BROS. MOTOR CO.
• Court: Kansas Supreme Court

21 P.2d 328

137 Kan. 581

J. I. CASE CO. v. SINNING BROS. MOTOR CO.

No. 31096.

Supreme Court of Kansas

May 6, 1933

Syllabus by the Court.

In action on note, evidence sustained verdict and judgment for plaintiff.

In action involving mailing of notice, evidence that document was put in process of being mailed, and in ordinary routine of business would be mailed, sustained verdict that it was mailed.

1. In a suit on a note the evidence is examined, and it is held, that there was sufficient evidence to sustain the verdict and judgment.

2. In an action involving the mailing of a notice, evidence that a certain document was put in process of being mailed and that in the ordinary routine of business would be mailed is sufficient to support a verdict that it was mailed.

Appeal from District Court, Jackson County; Horace T. Phinney Judge.

Action by the J. I. Case Company against the Sinning Brothers Motor Company, in which defendant filed a cross-petition. Judgment for plaintiff, and defendant appeals.

Floyd A. Sloan and W. Glenn Hamilton, both of Topeka, and Albert M Cole, of Holton, for appellant.

Floyd W. Hobbs, of Holton, and Oscar D. McCollum, Milton Schwind and Walter R. Barnes, all of Kansas City, Mo., for appellee.

SMITH Justice.

This was an action on a promissory note. Judgment was for plaintiff. Defendant appeals.

The petition prayed for judgment on the note for $484.20. Defendant filed an answer and cross-petition. The cross-petition alleged that the defendant had entered into an agency contract with plaintiff whereby the plaintiff agreed to pay defendant 20 percent. commission on all combines and other farm machinery sold and paid for in cash at the time of the delivery through the agency of defendant. The cross-petition alleged further that two combines had been sold by plaintiff through the agency of defendant for $1,000 each; that defendant should have been allowed $200 commission each on these combines; and that defendant was only allowed $80 commission on one combine and $79 commission on the other. Defendant alleged that on this account plaintiff was indebted to defendant in the sum of $241. Defendant made other allegations in his cross-petition which are not of interest here. In answer to these allegations in the cross-petition, plaintiff admitted the agency contract and the sale of the combines for $1,000 each, but alleged that the contract provided that commissions on all goods sold should be calculated on the list price and that all discounts, including cash discounts allowed a purchaser, should be charged against the commission. The answer further alleged that the full list price of the combines sold was $1,150 each; that $150 was deducted from the sale price of each combine, and the same amount was deducted from the commission due defendant; and that this left due defendant $80 on one combine and $79 on the other, the difference being $1 exchange for a bank draft drawn on defendant.

To this answer of plaintiff to the cross-petition defendant filed a reply denying that the plaintiff rightfully deducted from the commission of the defendant on the sale of each of the combines mentioned the sum of $150 and alleging that if there was a deduction or discount made by said plaintiff it was without the knowledge or consent of defendant.

With the pleadings so framed the jury answered special questions as follows:

"1. At the time of the sale of the Bailey and Smith combines did J. I. Case Company have a fixed, printed or written 'list price' for these two machines; or do you find that the list price of these two machines was a price fluctuating to correspond with the conditions of each individual sale to be determined by the J. I. Case Company at the time the transaction took place? Answer: Yes, J. I. Case Company has a fixed and printed 'list price.'

"2. What was the list price of the Bailey and Smith machines? Answer: Bailey $1150.00. Smith $1150.00.

"3. Did the defendant know of, authorize or consent to a discount on either of the machines sold to Bailey or Smith? Answer: Yes."

Judgment was entered accordingly.

On appeal defendant argues that these findings and judgment were contrary to the evidence.

After some general statements, the manager of the defendant testified as follows:

"That the representative of the plaintiff, Elder, advised Sinning that sales price of the machines were $1000.00. (Tr. 9).

"Q. At that time was the amount of commission credited to you explained by Chadwick? A. He said they cut the price on the machines and we had to stand the cut.

"Q. Did he tell you the list price on the combines? A. He did not.

"Q. Have you ever, up to this time, heard or learned the list price on the ten foot combines? A. No sir, don't know what they are today.

"Q. You took part in the deal only with the knowledge received from Elder they might be sold for $1000.00? A. Elder, Roberts and Lockley, your men."

A witness for plaintiff testified as follows:

"Q. I hand you plaintiff's Ex. A and ask you to state what that is. A. It is a price list of second-hand machinery...