Martin v. John Clay & Co.
| Decision Date | 11 January 1943 |
| Docket Number | 20199 |
| Citation | 167 S.W.2d 407 |
| Parties | W.C. Martin, Appellant, v. John Clay & Company, a Corporation, Frank H. Connor, A.F. Wilson, C.G. Smith and Maxwell B. Morgan, partners, doing business as John Clay & Company, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.
REVERSED AND REMANDED WITH DIRECTIONS.
All concur.
Floyd L. Sperry
Plaintiff, W.C.Martin, sued defendants, John Clay & Company a corporation, Frank H. Connor, A.F.Wilson, C.G.Smith, and Maxwell B. Morgan, partners doing business under the firm name of John Clay & Company. The cause of action is one for damages growing out of an alleged sale of cattle by plaintiff to defendants which sale defendants repudiated. Trial to a jury resulted in a verdict in favor of plaintiff in the amount of $ 2572.01, and interest thereon. Defendants' motion for new trial was sustained, the trial court assigning as reason therefor error in plaintiff's instruction # 1. Plaintiff appeals.
Plaintiff testified that he was the owner of 196 head of steers, in Sherman County, Texas; that on or about August 7, 1937, Tom T. Fields, an agent of defendants, Milt Reinhold who, together with L. M. Price owned cattle under the name of Matlock Ranch Company, and Harry Jett, who was, at that time, not further identified so far as plaintiff was concerned, met plaintiff at the latter's pasture by appointment; that Fields and plaintiff, in the letter's car, drove through and among the cattle with a view to their sale to defendants; That Fields discussed buying them and plaintiff priced them to him for $ 8.50 per hundred pounds; that no sale or contract of sale was made at that time; that a day or two later W.M. Price, cashier of the bank at Stratford, Texas, where plaintiff did his banking business and where his wife was employed, told him that defendants would buy his cattle for $ 8.30 per hundred pounds and that he, plaintiff, told Price The would sell at that price; that at some time prior to November 5, 1937, someone told plaintiff to bring his cattle to Stratford to be weighed, loaded and shipped; that on November 5 he brought his cattle to Stratford where Fields helped to cut out and weigh them; that after they were weighed plaintiff and Fields took the weights and went to the bank where they figured the amount due plaintiff for said cattle at $ 8.30 per hundred; that a bill of sale covering the 196 head of cattle above mentioned was prepared, signed by plaintiff, and delivered to Fields. The bill of sale was in evidence, and is in words and figures as follows:
He further testified that after the bill of sale was signed and delivered to Fields the latter filled out and delivered to plaintiff a draft on the back of said bill of sale, for the correct amount of the purchase price, said draft being in words and figures as follows:
He testified that the draft, when it was delivered to him and when he thereafter deposited same in the Stratford bank and placed it in course of collection, did not contain on its face the words: "c/o Jett Duden"; that he procured a certificate of release of mortgage on the cattle and attached same to the bill of sale with draft attached, and deposited same to his credit with the bank at Stratford; that when said draft was finally returned to him it had written on it, with a pen, "c/o Jett Duden"; that he was notified that payment had been refused on the draft and he authorized defendants to sell said cattle on the open market; that the contract price of the cattle was $ 11,391.75; that they were sold on the open market and plaintiff received $ 8,819.74; that his loss was $ 2,572.01. Plaintiff was, himself, his only witness.
J.C. Vance, office manager of defendants' Kansas City branch office at the time this transaction took place, and manager for John Clay & Company at the time this trial took place, testified that John Clay & Company does not buy cattle for itself, hut buys and sells solely on commission for others; that it never has bought cattle for itself; that it is registered with the Packers and Stock Yards Administration, a Federal agency, as a marketing agency, not as a dealer; that a dealer may, under Federal regulations, buy and sell in its own name but that a marketing agency cannot do so; that John Clay & Company received cattle from owners, on commission, and sells them for said owners on the market, the owner paying freight, yardage, commission and other charges; that it receives, accepts and executes purchase orders from customers, buys cattle on the market for such purchasers, the buyers, in such cases, paying commission and all other expenses; that it sometimes sends its agents to the country to buy cattle, on order, for its customers in which cases, we infer from his testimony, the purchaser pays cost of freight, yardage, commission and other charges. He testified that Tom Fields is and was in the employ of defendant company as a cattle buyer; that he was sent to Texas in August, 1937, to try to sell these cattle to Jett & Duden; that, ordinarily, a bill of sale covering cattle purchased for a customer would be made to the man for whom the cattle were bought, and that John Clay & Company would take an assignment of said bill of sale, but that Fields was also authorized to buy cattle and take title in the name of John Clay & Company; that Fields was provided by John Clay & Company with blank drafts, just like the one in evidence, and was authorized to execute and deliver such drafts, drawn on John Clay & Company, in payment for cattle bought; that at any time Fields issued a draft on John Clay & Company for cattle purchased" he must have had authority to do it." He testified that the cattle in question were bought for Jett & Duden and were their property at all times. He stated that Fields was not authorized to buy cattle, on this trip, for John Clay & Company as owners, and that he was not authorized to buy cattle for Jett & Duden, or for any other customer.
Tom T. Fields testified to the effect that he was, during the months of August and November, 1937, in the employ of defendants as a cattle buyer; that the went to Texas and sold the Matlock Ranch Company cattle, including plaintiff's cattle, to Jett & Duden; that, in company with Reinhold and Jett, he met plaintiff at his pasture to look at these cattle; that plaintiff and Jett rode together in plaintiff's car and witness and Reinhold rode together; that he did not discuss the cattle with plaintiff but that Reinhold priced the cattle to him; that witness, Reinhold, and Jett went from the pasture to the bank at Stratford and met L. M. Price where Price and Reinhold executed a contract of sale of 1950 head of cattle from Matlook Ranch Company to Jett & Duden, He identified an instrument which was introduced in evidence as being the contract of sale above mentioned, and testified that some of the brands mentioned therein were the same as those mentioned in the bill of sale executed by plaintiff. He stated that he was present when the Martin cattle were weighed at Stratford and, immediately afterward, went to the bank where the weights were figured against the price and he executed the draft which was in evidence, writing thereon: "c/o Jett Duden" that the plaintiff was not present at that time and that the bill of sale had not then been executed by him; and that he delivered the draft to L.M. Price.
Jett testified that he, Fields, and Reinhold looked at plaintiff's cattle in August, 1937; that he rode with plaintiff in looking at the cattle; that plaintiff did not price them to him but that Reinhold did; that he, Reinhold Fields and Price drew a contract of sale of these...
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