Waite v. High

• Citation: 96 Iowa 742,65 N.W. 397
• Parties: WAITE v. HIGH.
• Decision Date: 14 December 1895
• Court: United States State Supreme Court of Iowa

96 Iowa 742

65 N.W. 397

WAITE

v.HIGH.

Supreme Court of Iowa.

Dec. 14, 1895.

Appeal from district court, Bremer county; P. W. Burr, Judge.

Action to recover $608.72, balance alleged to be due for flour furnished by the plaintiff to be sold on commission, and sold. The defendant answered, denying generally, and the case was tried to a jury. Verdict and judgment were rendered in favor of defendant. Plaintiff appeals. Reversed.E. L. Smalley, for appellant.

M. B. Dougherty and Gibson & Dawson for appellee.

GIVEN, C. J.

1. The issues will sufficiently appear from the following statement of the facts which are uncontroverted, or fully established by the evidence: On September 17 and October 12, 1888, the plaintiff shipped to A. G. Keene & Co., a firm composed of A. G. Keene and A. M. Corey, doing a commission business at Minneapolis, consignments of flour of different grades, to sell on commission, which consignments were duly received. In a short time after October 12th Keene retired from said firm and business. Corey continued the business alone till November 15, 1888, when he sold a one-half interest therein to the defendant, High. After that date the business was carried on by the firm of High & Corey until December 1st, when Corey sold his interest to L. D. Peck. Thereafter the business was carried on by the firm of High & Peck until about the 1st of March, 1889, when they closed out, and ceased business. Each of these successors to Keene & Co. received from his predecessor all of this flour that was on hand at the time of the transfer of the business, and High & Peck sold all that came into their hands before going out of business. Plaintiff alleged that the firm of High & Corey assumed the indebtedness of Keene & Co. and of Corey, and therefore asks to recover from defendant the value of the flour sold by Keene & Co. and by Corey. There was no evidence to sustain this claim, and it was not submitted to the jury. Plaintiff also seeks to recover of the defendant individually the value of so much of said flour as came into the possession of said firms of which he was a member. It is not questioned but that the defendant is individually liable for whatever indebtedness may exist against either of his said firms to the plaintiff on account of said flour. The defendant admits in his evidence that there were 60 to 80 sacks that came into the hands of High & Corey, and contends that the credits which plaintiff admits are sufficient to pay for that amount of flour. The plaintiff claims that a much larger quantity came into the hands of said firm. The contention, then, is as to the quantity of said flour that came into the hands of the firms of which defendant was a member.

2. Plaintiff's first complaint is of a number of rulings made in taking the testimony, and especially upon the examination of G. W. Nash, who was called by the plaintiff to show the amount of said flour that came into the hands of High & Corey and High & Peck. It appears without question that Mr. High resided at some distance from the place of business, and did not give his personal attention to the business; that he employed Mr. Nash, as he says, “as a clerk to look after my business when I was not there.” Nash testifies that he was employed to have the control of the funds; to attend to High's part of the business. “I was to step right into Mr. High's shoes as to buying and selling, and was to have control of the handling of the funds, deposit the funds in bank, and check them out. Mr. Corey said he would accept that arrangement.” Mr. Nash kept the books and superintended the business for Mr. High from the time High went into the business until it was finally closed out. Nash made an inventory of the stock on hand, including this flour, at the time High went into the business, and also when Peck was taken in as a partner with High. These inventories were entered on the books. Each successor to the business continued to use the same books of account that were used by Keene &...