J. R. Watkins Co. v. Hanson

• Decision Date: 12 December 1959
• Docket Number: No. 41563,41563
• Citation: 347 P.2d 447,185 Kan. 758
• Parties: J. R. WATKINS COMPANY, a Corporation, Appellant, v. Shirley HANSON and Roy Wilson, Appellees.
• Court: Kansas Supreme Court

Page 447

347 P.2d 447

185 Kan. 758

J. R. WATKINS COMPANY, a Corporation, Appellant, v. Shirley HANSON and Roy Wilson, Appellees.

No. 41563.

Supreme Court of Kansas.

Dec. 12, 1959.

Syllabus by the Court.

In an action to recover money, alleged to be due under the terms of a written contract from a principal and surety for goods, wares and merchandise purchased by the principal on account, the record is examined and held to disclose no error warranting a reversal of the judgment.

C. W. Slifer, St. John, for appellant.

Evart Garvin, St. John, Robert Garvin and Morris Garvin, St. John, for appellees.

PARKER, Chief Justice.

This was an action to recover money, alleged to be due and payable under the terms of a written contract. Defendants prevailed and the plaintiff appeals.

On November 7, 1951, the J. R. Watkins Company of Winona, Minnesota, entered into an agreement with Shirley Hanson of St. John, Kansas, as purchaser, providing that such purchaser was to buy goods, manufactured and/or sold by the company, for purposes of sale in the locality in which she was then engaged, or intended to engage, in the business of selling such products. At the time of the execution of the purchase agreement there was attached thereto a surety agreement, executed by Roy Wilson and Guy Carter, as sureties, whereby such sureties unconditionally promised, agreed and guaranteed to stand good for the products Watkins sold to Hanson and for which Hanson failed to pay, in accord with the terms of the purchase agreement.

In passing it is to be noted the contract between the company and Hanson contained a provision that upon termination of their business relations the company would repurchase from Hanson any products she had on hand and that upon receipt thereof the company was to credit her account with the reasonable value of all products returned therefore.

On June 13, 1956, the company commenced an action against Hanson, and Wilson and Carter, as sureties, by filing a petition in the district court, alleging in substance that Hanson had failed to pay for goods purchased and received from the company and that by reason for her failure to do so she and both sureties were indebted to the company in the sum of $925.18.

In response to the petition the parties defendant filed a verified answer wherein they denied generally any liability whatsoever on the account sued on and, among other things, alleged as their principal defense that, at the termination of their business relationship, the defendant Hanson had returned to the company previously purchased products sufficient to more than satisfy any balance owing upon her account.

Some time after the filing of the answer one of the sureties (Guy Carter) died. Thereupon, in open court, plaintiff dismissed its action as against such surety. Thereafter, and with issues joined as related, the cause came on for trial by jury in the district court.

At the trial plaintiff's evidence consisted of lengthy depositions of two witnesses who described in detail the transactions between the company and Hanson; the character of the goods, wares and merchandise sold to Hanson; the amount due for such products; the payments made thereon; and the amounts to which it claimed Hanson was entitled to credit for returned merchandise. In the main defendants' proof consisted of evidence showing the products returned by Hanson to the company and the amounts which should have been credited to her account by reason thereof.

With respect to evidence adduced by the parties relating to products returned by Hanson, for which she was entitled to credit, it may be said, it appears from an incomplete and confusing record, that the testimony was highly conflicting but nevertheless sufficient to go to the jury. On the one hand the company's evidence was to the effect there were only two shipments of merchandise returned by Hanson and that it had given her all credits to which she was entitled under the terms of the contract. On the other the defendants' evidence was to the effect that the company had failed to give Hanson full credit for all merchandise returned in the two shipments admittedly received; that Hanson had made a third shipment of merchandise to the company at Memphis, Tennessee, for which she had not been given or allowed any credit; and that had the company allowed her full credit for all merchandise returned, at its fair and reasonable value as fixed by the contract, such merchandise would have more than satisfied the balance claimed by the company against the defendants.

At the close of all evidence the trial court instructed the jury and then submitted the cause to it for its decision, along with two special interrogatories. In due time the jury returned a general verdict in favor of the defendants along with its answers to the submitted special questions. In the answer to question No. 1 it found that Hanson had returned goods (describing them) to the company's place of business in Memphis, Tennessee, on or about January 10, 1954, and, in the answer to question No. 2, it found the value of the goods, returned by such defendants to that location, amounted to $708.43.

Following the return of the verdict and answers to special questions the plaintiff filed a motion for a new trial. Thereafter that motion was overruled and judgment was rendered upon the verdict in favor of defendants and against the plaintiff. This appeal followed.

At the outset we pause to point out that appellant's assignments of error are limited to alleged trial errors and his contentions with respect thereto will be given consideration without regard to the order in which they are made in its brief.

One specification of error is that appellant was entitled to a new trial because of misconduct on the part of counsel for appellees in making untrue and prejudicial remarks in final argument to the jury. The record of the proceedings in the court below fails to disclose (1) the nature of the argument complained of; (2) any objection to argument by counsel for appellees at the time it was made; and (3) any request to the trial court for a ruling on such argument or an instruction to the jury concerning it. Under such circumstances appellant's position on this point lacks merit and cannot be upheld. The established rule is that misconduct of counsel in argument to the jury is not available as a ground for the sustaining of a motion for a new trial or the reversal of a judgment where no objection was made to it and no request was made for a ruling thereon, or for an instruction to the jury concerning it. Mai v. City of Garden City, 177 Kan. 179, 277 P.2d 636; Shreve v. Kansas Turnpike Authority, 181 Kan. 406, 312 P.2d 595. The fact counsel for appellant has seen fit to include in his brief an affidavit setting forth his version of the statements complained of affords no basis whatsoever for a contrary conclusion. On appeal from an order overruling a motion for a new trial an...