Kugler v. Rouss

• Decision Date: 09 October 1901
• Parties: KUGLER et ux. v. ROUSS. [1]
• Court: Kentucky Court of Appeals

64 S.W. 627

KUGLER et ux. v. ROUSS. ^[1]

Court of Appeals of Kentucky.

October 9, 1901

Appeal from circuit court, Christian county.

"Not to be officially reported."

Action by C. B. Rouss against J. H. Kugler and Carrie Kugler to recover possession of personal property. Judgment for plaintiff, and defendants appeal. Affirmed.

John Feland, Jr., and F. L. Wilkinson, for appellants.

John Phelps, for appellee.

HOBSON J.

In the month of May, 1897, C. B. Rouss had a claim against J. H Kugler on account of goods sold to him for between $11,000 and $12,000. Kugler was running a racket store at Hopkinsville. Rouss sued, and took out an attachment, which was levied on the stock. Other attachment suits followed aggregating perhaps $30,000. The goods were sold in the consolidated actions, and Rouss became the purchaser for $20,400. Rouss is a wholesale merchant, living in New York. Kugler took charge of the stock of goods for Rouss, as manager or agent, under the following written contract "This contract, made and entered into this, the 7th day of July, 1897, between C. B. Rouss, of the city of New York party of the first part, and J. H. Kugler, of Hopkinsville, Ky. party of the second part, witnesseth: That whereas, said C. B. Rouss has this day purchased at sheriff's sale under an order of the Christian circuit court the stock of goods known as the 'Racket Store,' in said city, for the sum of $20,400.00 cash, and has employed said J. H. Kugler as manager and agent to sell and dispose of same; and it is expressly understood and agreed to by and between parties hereto that said J. H. Kugler, after paying the necessary expenses of conducting said business, is to remit the proceeds to said C. B. Rouss, and that said Kugler is not authorized, nor is said Rouss responsible for any outside debt of any nature that said Kugler may contract. Said C. B. Rouss hereby agrees to turn over to said J. H. Kugler the complete title to said stock of goods whenever his said debt and costs and the purchase money that he has been compelled to pay for said stock of goods shall have been paid in full to him." Kugler ran the store from this time, making payments to Rouss from time to time, which reduced his debt to about $20,000. In September, 1898, Kugler became bankrupt. In January, 1899, he wrote Rouss that he saw no future in the business, and suggested to Rouss to send some man there to take his place, and, if they could agree on a settlement, he would surrender the keys. Rouss sent a man to Hopkinsville, but he and Kugler could not agree, and, Kugler refusing to give possession, Rouss filed this suit, and took out an order of delivery for the stock. Kugler defended the suit upon the ground that by the contract he acquired an interest in the goods, and therefore could not be dispossessed in an ordinary action upon an order of delivery. He also set up a claim for services, and prayed judgment therefor it he was not entitled to retain the goods. His wife, Carrie Kugler, on her petition, was made a defendant to the action, and set up a claim for $1,063.38, which she alleged she had lent her husband, and he had used in the business as agent for Rouss. The jury found for the plaintiff on all the issues, and Kugler and wife have appealed.

There is no allegation of fraud or mistake in the writing. Its correctness is not assailed in any way. It recites that Rouss has purchased the goods, and has employed Kugler as manager and agent to sell them, and that Kugler, after paying the necessary expenses, is to remit the proceeds to Rouss. So far it is a simple contract of agency. The concluding words that Rouss agreed to turn over to Kugler the complete title to the stock of goods when his debt and costs and purchase money were...