Stacy

• Decision Date: 09 June 1900
• Docket Number: 11,623
• Citation: 61 P. 399,62 Kan. 50
• Court: Kansas Supreme Court
• Parties: STACY, ADAMS & CO. v. GEORGE W. COOK

61 P. 399

62 Kan. 50

STACY, ADAMS & CO. v. GEORGE W. COOK

No. 11,623

Supreme Court of Kansas

June 9, 1900

Decided July, 1900.

Error from Reno district court; MATTHEW P. SIMPSON, judge.

STATEMENT.

IN August, 1894, George W. Cook and his son Herbert Y. Cook doing business under the name of Cook & Son, were indebted to Stacy, Adams & Co. in a sum exceeding $ 12,000, and to W. H. Stacy for the sum of $ 1000 for money borrowed, evidenced by a note for that amount. Cook & Son were engaged in the retail boot and shoe business at Omaha Neb., at that. time, and their indebtedness to various creditors exceeded $ 30,000. On the above date they executed a first mortgage to Stacy, Adams & Co. on their stock of goods for $ 12,480.18, and to W. H. Stacy for $ 1000. They also gave chattel mortgages to other creditors. Stacy, Adams & Co., with the consent of Cook & Son, immediately took possession under their mortgages. Before this George W Cook had been in the employ of the plaintiffs in error for many years as a traveling salesman, and at the time the chattel mortgages were given they owed him a balance for salary up to that time of $ 1770, over which this controversy arose. It is claimed by Cook that, in consideration of the execution by Cook & Son of the chattel mortgages to Stacy, Adams & Co., the latter agreed to pay him said salary and to waive their right to offset the amount due him from the amount Cook & Son owed the plaintiffs in error.

The following proceedings appear from the record:

"During the oral argument by defendants' counsel the attorney for defendants was proceeding to read to the jury the special questions submitted by the court at the request of the plaintiff and to argue to the jury from the evidence how, in the opinion of the attorney, the jury should find as to each special question by specific reference to the question, and what the answer under the evidence should be as to each special question asked and submitted. Thereupon the counsel for the plaintiff objected, on the ground that it was improper to argue or state to the jury how they should find or how they should answer as to these special questions. The court, being advised in the premises, doth sustain the objection, with the statement and qualification that counsel could argue generally all the evidence in the case bearing upon the facts covered by the special interrogatories, but could not specifically call the attention of the jury to each interrogatory and suggest to the jury and advise the jury the answers which, in his opinion, the jury should give to each interrogatory. To which ruling the defendants and their counsel thereupon excepted.

"Defendants' counsel then asked and requested that he be permitted to argue before the jury, by special reference to each question how they should find and answer each and every special question submitted, which application was denied, and the defendants except.

"The defendants then objected to any special findings or questions upon the part of the plaintiff being submitted to the jury unless he should be permitted to argue them as above, which objection, with the above and foregoing qualifications, was by the court overruled; to which defendants excepted. . . .

"Before the arguments of counsel, the defendants, Stacy, Adams & Co., request the right to argue the special findings submitted by both plaintiff and defendant to the jury, with the right to argue to the jury how each of those questions should be answered from the evidence in the case, by referring to the findings themselves, and the same right to argue these questions as the general verdict.

"By the court: The court permits counsel on both sides to argue from the evidence in the case as to its bearing upon all questions of fact involved in the case in their general argument, but refuses the request of counsel on both sides, if such request is made, to take up the interrogatories and argue them specifically and suggest to the jury what answer, in the opinion of the counsel, should be given to each interrogatory.

"By the defendants: Except to the ruling of the court.

"By the defendants: The defendants object to any special interrogatories or questions being submitted to the jury on behalf of the plaintiff, unless defendants are permitted to discuss them specifically before the jury.

"By the court: Overruled, with the qualifications expressed in the last ruling above given.

"By the defendant: Except to the ruling of the court."

Verdict and judgment were rendered against plaintiffs in error for the amount claimed and interest, from which judgment they prosecute proceedings in error to this court.

Judgment reversed.

Martin & Roberts, for plaintiffs in error.

O'Neill & Gilbert, and H. Whiteside, for defendant in error.

OPINION

SMITH, J.:

In answer to the petition, which stated a cause of action upon an account for services, the defendants below alleged, among other things, that George W. Cook was indebted to them in the sum of $ 5860.40 upon an account, a copy of which was attached to the answer, and was further indebted to them in the sum of $ 1000, evidenced by a note executed to William H. Stacy, which was indorsed by the latter to the firm of Stacy, Adams & Co., and prayed judgment against him for said amounts. In said account Cook is credited with "salary account for 1894 up to taking stock in August, 1894, $ 1770."

In his reply, the plaintiff below denied generally the allegations of the cross-petition and answer, except the admission that on August 31, 1894, defendants owed the plaintiff $ 1770 for salary. He further averred that Stacy, Adams & Co. agreed and promised that if he and his partner, constituting the firm of Cook & Son, would give defendants below a mortgage on their stock of goods and fixtures, Stacy, Adams & Co. would pay in cash to said Cook all of the salary then due him, and would under no circumstances claim the right to apply said sum due for salary upon the amount owing by Cook & Son to the defendants...