Sons v. Mayer

• Decision Date: 01 July 1893
• Citation: 34 P. 969,52 Kan. 419
• Court: Kansas Supreme Court
• Parties: JACOB LEU & SONS v. MAYER, SELLS & CO

34 P. 969

52 Kan. 419

JACOB LEU & SONS v. MAYER, SELLS & CO

Supreme Court of Kansas

July 1, 1893

Error from Pawnee District Court.

ACTION by Jacob Leu & Sons against Daniel Mayer and others. At the April term, 1890, the defendants had judgment. The plaintiffs come here. The facts are set forth in the opinion.

Judgment reversed and cause remanded.

H. C Johns, Thomas W. Johns, and Wm. G. Fairchild, for plaintiffs in error:

The bookkeeper, Keyes, was a special agent, with instructions to secure plaintiffs' claim due them by Mayer, Sells &amp Co., and had no authority to release Sells and Thorp, and any agreement to that effect (if made) was not binding on these plaintiffs, but wholly void.

The rule is well settled that a special agent does not bind his employer or principal unless his authority be strictly pursued. Paley, Agency, 199; Loudon, etc., v. Savings Bank 36 Pa. 503. See, also, Mussey v. Beecher, 57 Mass. 517; Relief Ass'n v. Post, 122 Pa. 597; Grim v. Bonnell, 78 id. 152; Whiting v. Lake, 91 id. 349; Hays v. Linn, 7 Watts (Pa.), 525; Insurance Co. v. Schultz, 82 Pa. 46; Stollenwerck v. Thacker, 115 Mass. 224.

"The mere declarations of one who professes to be an agent are not competent evidence to establish his agency." French v. Wade, 35 Kan. 391. See, also, St. L. & S. F. Rly. Co. v. Kinman, 49 Kan. 627; Streeter v. Poor, 4 id. 412; Craighead v. Peterson, 72 N.Y. 283; Hurley v. Watson, 68 Mich. 531.

"A principal is not bound by the acts of his agent, unless authorized, or unless his own acts and representations estop him from denying the authority." Lewis v. Comm'rs of Bourbon Co., 12 Kan. 186. See, also, Kane v. Barstow, 42 Kan. 465.

The facts in Banks Bros. v. Everest, 35 Kan. 687, are widely different from those of the case at bar.

While the testimony of Mr. Leu and the special finding of the jury show that Keyes had authority only to "secure" plaintiffs' claim, yet the court says to the jury that, if they believe from all the evidence Keyes had authority to settle the debt, he was also authorized to release Sells and Thorp.

Instructions should be applicable to the facts in evidence, and when not, and the jury are probably misled, the judgment will be reversed and a new trial granted. Mo. Pac. Rly. Co. v. Pierce, 33 Kan. 61; Zimmerman v. Knox, 34 id. 245; Insurance Co. v. Thorpe, 40 id. 255; Lorie v. Adams, 51 id. 692. There was no evidence or fact in proof of any authority in Keyes to release Sells and Thorp -- nothing to justify this instruction complained of.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Jacob Leu & Sons, wholesale dealers in hardware, at Atchison, sold goods to Mayer, Sells & Co., who were retail dealers in hardware at Larned, Kan. In August, 1888, Mayer, Sells & Co, owed Jacob Leu & Sons, upon two promissory notes and an open account, $ 730.79, with certain interest which had accrued. At the latter date, the firm of Mayer, Sells & Co., which was composed of Daniel Mayer, George A. Sells, and A. A. Thorp, dissolved, Mayer purchasing and taking possession of the entire partnership stock. At the time of the dissolution, the firm was indebted to the First National Bank, at Larned, in the sum of $ 2,700, and, to secure this debt, Mayer executed a chattel mortgage on the entire stock. A second mortgage was executed by Mayer to Sells, which was not placed upon record. The plaintiffs, hearing of the dissolution and change of ownership, sent their bookkeeper, Keyes, to Larned, as they say, to look after their claim, and "with instructions to secure the same from the partners owing them." He obtained a chattel mortgage upon the entire stock of goods, which was made second to that given to the bank. The bank was authorized to take immediate possession of the goods mortgaged, and sell the same, which it at once proceeded to do, and only realized from the sale of the entire stock about $ 1,600. Jacob Leu & Sons then brought this action against all the members of the firm of Mayer, Sells & Co., to recover the amount of their claim. Sells and Thorp only were served with summonses, and their answer admitted the copartnership, and that the indebtedness had accrued, but alleged as a defense that a settlement had been made by which the plaintiffs agreed to look to Mayer alone for the debt, provided he would give a second mortgage upon the entire stock of goods to secure the same; that such mortgage was actually given, and that Sells and Thorp were thereby released.

At the trial, the defendants offered testimony to the effect that, when Keyes came to Larned, he agreed that if Sells would surrender the second mortgage which had been given to him, and permit the firm of Jacob Leu & Sons to get from Mayer a mortgage upon the entire stock of goods which should stand next in priority to that of the bank, he would release Sells and Thorp and look to Mayer alone for the payment of the debt. The plaintiffs denied that there was any release of any member of the firm, and denied also that Keyes had any authority to release or discharge anyone from the debt. It may be remarked that the notes of the firm were not canceled or surrendered.

One of the principal questions in the case was whether the bookkeeper, Keyes, had authority to release Sells and Thorp from their admitted indebtedness. The defendants contended that he was a general agent, with authority to release,...