The Emerson-Brantingham Company v. Gwin

• Decision Date: 06 April 1918
• Docket Number: 21,200
• Parties: THE EMERSON-BRANTINGHAM COMPANY, Appellee, v. JERRY LYONS AND W. D. GWIN, Partners, etc., Appellants
• Court: Kansas Supreme Court

172 P. 513

102 Kan. 733

THE EMERSON-BRANTINGHAM COMPANY, Appellee, v. JERRY LYONS AND W. D. GWIN, Partners, etc., Appellants

No. 21,200

Supreme Court of Kansas

April 6, 1918

Decided January, 1918.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WRITTEN CONTRACT -- Provisions for its Termination -- Cannot Be Varied by Parol Evidence. A written contract between a manufacturer of tractors and the distributors that either party might terminate the contract relation at any time by giving the other thirty days' notice in writing of his intention to do so, which is definite and complete, cannot be contradicted, altered, or added to by parol evidence of concurrent or prior negotiations or understandings.

2. SAME--Sufficient Notice of Termination Given. The notice given by one of the parties to the contract in question is held to be sufficient and effective to end the contract relation, and such party did not become liable to the other for damages through the exercise of the option provided for in the contract.

3. WRITTEN ORDER--By Employee to Employer--Created No Liability against Employer. A party may bind himself in writing to pay the debt of another and may make a binding promise to a debtor to pay his debt to a third person, but a written order by an employee to his employer to pay his creditor a sum of money out of the salary account of the employee does not create a liability against the employer and in favor of the creditor unless the employer agrees to honor the order or to make the payments.

Ord Clingman, of Lawrence, for the appellants.

Edgar C. Ellis, Hale H. Cook, Raymond G. Barnett, and Roy K Dietrick, all of Kansas City, Mo., for the appellee.

OPINION

JOHNSTON, C. J.:

The defendants were sued for the contract price of a farm tractor and upon an indebtedness due upon a second-hand tractor. As to the latter claim there is no controversy on this appeal. In answer to plaintiff's demand, defendants set up several counterclaims alleged to have arisen out of the breach by plaintiff of a written contract originally entered into by the defendants and the Gas Traction Company, to whose rights and liabilities the plaintiff has succeeded. These claims involved expenses incurred in reliance upon the contract, the value of their services up to the time of the alleged breach, and the consequent loss of profits. Another counterclaim was upon what is referred to as the Lang transaction. A demurrer to an answer was sustained, and this order was reversed. (Emerson-Brantingham Co. v. Lyons, 94 Kan. 567, 147 P. 58.) The case was afterward submitted to the court on the evidence, and no special findings were made. From the judgment in plaintiff's favor, defendants appeal.

Under the contract the defendants were appointed distributors of traction engines in Kansas and were to thoroughly canvass the state and sell the tractors at a retail price of $ 2,800, while they were to receive them at a price of $ 2,400 for the first ten tractors; for the next five, $ 2,300; and for all over fifteen, $ 2,250. The defendants were not authorized to conduct business or act in the name or on behalf of the company, and their appointment as distributors was "for a period of one year beginning April 1st, 1912, and ending March 31st, 1913, unless previously terminated, as hereinafter provided." The provision in the contract principally concerned in this appeal follows:

"It is mutually agreed that this contract may be terminated at any time either by the Company or distributors, giving thirty days' notice in writing to the other of their intention so to do."

Another provision in the contract was to the effect that if there was a failure of the defendants to accept an engine that had been ordered, or to pay for it within thirty days after shipment, the company had the option to terminate the relationship upon giving defendants twenty days' notice in writing. The sale of its interest by the traction company to the plaintiff was consummated in August, 1912. In October, 1912, the plaintiff in a letter gave the defendants notice of its intention to terminate the contract in accordance with its terms, which was to take effect thirty days thereafter, and in it the company stated that if they had "deals pending which you expect to close within the near future, we will be glad to give them consideration and of course would expect to make it right with you."

In the trial, testimony was offered by the defendants tending to show that prior to and at the time of the execution of the written contract they were informed by the officers of the traction company that it was about to effect a sale to the plaintiff...