Morrill v. Raymond

• Decision Date: 18 July 1878
• Citation: 28 Kan. 415
• Court: Kansas Supreme Court
• Parties: E. N. MORRILL AND C. H. JANES, Partners as Morrill & Janes, v. HORACE RAYMOND

28 Kan. 415

E. N. MORRILL AND C. H. JANES, Partners as Morrill & Janes, v. HORACE RAYMOND

Supreme Court of Kansas

July 18, 1878

February 17, 1879, Decided

Error from Brown District Court.

THE firm of I. N. Speer & Co., of Hiawatha, in the fall of 1880 employed C. H. Orth to purchase corn for them at Hiawatha, and gave him the money with which to do it. The contract between the parties was that Speer & Co. were to furnish him the money, which he was to deposit in the bank of Morrill & Janes at Hiawatha, and as he bought corn he was to check it out. Nothing was said at the time about whose name he was to deposit the money in, but it was supposed by the parties that he would deposit it in his own name. It was understood that the money was to be used by Orth for no other purpose than to buy grain, and Speer & Co. never authorized him to mix the money with his own or any other person's money, and never authorized him to use the money or any part thereof for his own use, and never had any knowledge that he was doing so. Orth was to be paid one cent per bushel for buying the corn, but the corn contracts were taken in his own name. Speer & Co. furnished the money to the amount of from $ 10,000 to $ 15,000, and Orth deposited the money as agreed upon, but put it along with other moneys some of it belonging to other parties. From October 1, 1880 to April 1, 1881, the account of Orth with the bank of Morrill & Janes aggregated $ 28,613.85. Sometime in February, 1881, he drew out of the bank all of the moneys belonging to other parties than Speer & Co., and the deposit account after that day was only the moneys due Speer & Co., advanced to him to purchase corn under the contract. On April 1, 1881, the money on deposit to Orth's credit at the bank was $ 586.50. A correspondent of the bank at St. Joseph had paid on the same day a check of Orth's for $ 150. All the other money deposited by him had been drawn out on checks drawn by himself. On April -- 1881, Orth had received from Speer & Co. $ 692.12 which he had not expended for the purchase of the corn; the deposit at the bank upon that day being actually less than that due from Orth to Speer & Co.

On the 17th day of February, 1879, Horace Raymond obtained a judgment in the district court of Brown county, against Orth for the sum of $ 749.63, bearing interest at seven per cent per annum. This judgment was obtained upon a petition filed July 18, 1878, charging Orth with the conversion, on or about the 20th day of February, 1878, of a portable steam engine belonging to Raymond. This judgment remaining unsatisfied Raymond, on April 1, 1881, caused an execution to be issued against the property of Orth, which was returned the same day by the sheriff indorsed, "No goods, chattels, lands, or tenements found." Thereupon, on the same day, the judgment creditor, Raymond, filed his affidavit for garnishment, and caused a summons in garnishment to be issued. This was served on Morrill & Janes April 1, 1881. On April 12, 1881, Morrill & Janes answered to the order of garnishment as follows: "We had a sum of money standing to the credit of C. H. Orth, when served with garnishee notice, which is now claimed by I. N. Speer & Co. to belong to them, of the value of $ 436.50." This answer being unsatisfactory to Raymond, he commenced this action April 23, 1881, against Morrill & Janes. The prayer of the petition was for judgment against defendants Morrill & Janes as garnishees of C. H. Orth, for the sum of $ 586.50. On August 2, 1881, defendants filed their answer, containing a general denial. Trial had by the court without a jury, at the September Term, 1881. A general finding was made for the plaintiff, Horace Raymond, and judgment rendered in his favor against...