Myer v. Moon

• Decision Date: 07 March 1891
• Citation: 26 P. 40,45 Kan. 580
• Parties: JOSEPH MYER v. A. T. MOON
• Court: Kansas Supreme Court

26 P. 40

45 Kan. 580

JOSEPH MYER v. A. T. MOON

Supreme Court of Kansas

March 7, 1891

Error from Finney District Court.

JUDGEMENT for plaintiff Moon, on January 21, 1888. The defendant Myer brings the case here. The facts are stated in the opinion.

Judgment affirmed.

A. J Hoskinson, for plaintiff in error.

C. W Morse, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Joseph Myer asks a reversal of a judgment for $ 74, rendered against him and in favor of A. T. Moon, in the district court of Finney county. One ground for the reversal is that the petition did not state a cause of action. In substance, the allegations of the petition were that on August 19, 1886, Myer, who was in the ice business in Garden City, agreed to turn over his business to Moon, together with the benefits of a contract which Myer had with Olin Brothers, of Pueblo, Colorado, to furnish ice to him in Garden City at a certain price, and the ice was to be ordered and purchased from Olin Brothers in the name of Myer. In pursuance of this agreement, on August 20, 1886, a car-lead of ice was ordered from Olin Brothers in the name of Myer, which was received by Moon, when Myer represented that Olin Brothers were indebted to him for the amount of the hill for that carload, and that he would settle with Olin Brothers for the same, and would do so immediately, in order to preserve credit under the contract with them so that the ice could be promptly procured from them when ordered. Moon, relying on the truth of these statements, paid Myer the amount due for the ice; but he alleges that the statements of Myer that Olin Brothers were indebted to him were untrue; that Myer did not pay or settle with them for the ice, as he agreed to do; and that by reason of his failure to settle with them for the ice, Olin Brothers refused to ship ice to Moon when ordered by him in the name of Myer, and disposed of the ice, which they intended to supply under their contract with Myer, to other parties; and that thereby Moon was unable to procure ice under the contract; and that, by reason of the conduct of Myer, Moon has been damaged in the sum of $ 500.

We think the demurrer to the petition was properly overruled. The contract between the parties is valid and appears to be based upon sufficient consideration. Moon agreed to pay to Myer the sum of $ 25, and also to furnish to Myer 5,000 or 6,000 pounds of ice at the net cost of the same at Garden City. Although the petition is not as elaborate as it might have been, it states a valid agreement, a breach of the same by Myer, and that his non-compliance...