The Owensboro Wagon Company v. D. A. Wilson & Co.

• Decision Date: 06 March 1909
• Docket Number: 15,869
• Citation: 79 Kan. 633,101 P. 4
• Court: Kansas Supreme Court
• Parties: THE OWENSBORO WAGON COMPANY v. D. A. WILSON & Co., a Partnership, etc

101 P. 4

79 Kan. 633

THE OWENSBORO WAGON COMPANY v. D. A. WILSON & Co., a Partnership, etc

No. 15,869

Supreme Court of Kansas

March 6, 1909

Decided January, 1909.

Error from Sedgwick district court; THOMAS C. WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WRITTEN CONTRACT--Parole Evidence--Set-off. The rule forbidding the admission of an oral agreement varying the terms of a written contract is not violated by permitting the defendant in an action upon a promissory note to prove as a set-off an amount which is due from the plaintiff upon an oral contract made at the time the note was given, and which formed a part of its consideration.

2. STATUTE OF FRAUDS--Promise to Answer for Debt of Another. Whether the promise of one who expressly assumes liability for a debt for which another is already bound is original or collateral is ordinarily a question of fact, to be determined in the light of all the surrounding circumstances.

3. AGENCY--Authority--Ratification. Although the plaintiff in an action upon a note learns for the first time at the trial of the case that the defendant claims a special contract was made in his behalf by the agent who procured the note, which formed a part of its consideration, if upon acquiring such information he continues to assert his rights upon the note he can not defeat the effect of such contract if it is shown to have been made, by denying that his agent had authority to bind him thereby.

4. NEW TRIAL--Surprise. One who submits a case tried without a jury, without asking opportunity to procure further testimony, is not in a position to ask as a matter of right a new trial on the ground that he was surprised by the evidence of the adverse party.

E. L. Foulke, and C. A. Matson, for plaintiff in error.

Earl Blake, W. A. Ayres, and Walter A. Blake, for defendants in error.

OPINION

MASON, J.:

Guy Cooper entered into a written agreement with D. A. Wilson & Co. providing for their acting as his exclusive selling agents within a certain territory for buggies and wagons manufactured by the Owensboro Wagon Company and vehicles made by another factory. On the same day H. I. Kennedy negotiated a contract between Wilson & Co. and the Owensboro Wagon Company, which that company afterward accepted, fixing terms for the purchase of its vehicles. After considerable business had been done under these contracts Kennedy visited Wilson & Co. to arrange a settlement with them in behalf of the Owensboro Wagon Company. A settlement was agreed upon showing a balance owing, for which Wilson & Co. gave their note, due in six months, Kennedy signing a memorandum, which the company afterward approved, giving the figures on which the settlement was based and containing a provision with regard to a commission then due under the Cooper contract.

The Owensboro Wagon Company sued Wilson & Co. on the note referred to, and a partial defense was made on the ground that the defendants were entitled to a set-off on account of certain commissions earned under their contract made with Cooper; that these were a charge against the wagon company, first, because Cooper in making the contract with Wilson & Co. was acting for it, and, second, because at the time of the settlement referred to Kennedy had orally arranged for the payment by the company of these commissions, which had not at that time been fully earned, and that the note was executed on that understanding. A judgment was rendered for the amount of the note, less the credit claimed. The plaintiff prosecutes error, and the question presented is whether there was any competent evidence to justify the allowance of the credit.

In support of their contention that the contract made in the name of Cooper was really that of the company the defendants maintain that its letters showed a recognition of that fact. We find in the correspondence, however, nothing inconsistent with the idea that the contract was really just what it appeared to be.

The serious question is whether the oral agreement of Kennedy was competent to establish the claim of the defendants. Three objections are made to it: (1) That if given effect it varied the terms of a written contract; (2) that it was the promise to pay the debt of another, and under the statute of frauds was unenforceable because not in writing; and (3) that there was no evidence that Kennedy was authorized by the plaintiff to make it.

The evidence that when the note was given the company agreed that in part consideration thereof it would pay some commissions that were to accrue in the future under the Cooper contract had no tendency to...