Warner v. Thompson

• Decision Date: 05 March 1886
• Parties: H. H. WARNER v. M. A. THOMPSON
• Court: Kansas Supreme Court

10 P. 110

35 Kan. 27

H. H. WARNER v. M. A. THOMPSON

Supreme Court of Kansas

March 5, 1886

Error from McPherson District Court.

ON May 26, 1883, the following order or agreement was signed:

"H H. Warner, please consign one Mosler O. Bahman fireproof safe, size inside, 22 inches high, 17 inches wide, 12 inches deep, to M. A. Thompson, town of McPherson, county of McPherson, state of Kansas. The undersigned is to take possession of safe taken in exchange from Loomis Bros. on arrival of their new safe, and agrees to pay $ 30 for the same, fifteen dollars on delivery or consignment of safe with interest at 8 per cent. for balance, which is due in three months; undersigned takes above safe where it stands. This order subject to approval by H. H. Warner. In case of deferred payment, notes to be forwarded to you at the expiration of 25 days from date of invoice, or the amount shall become due at the expiration of 30 days from the date of bill; and I agree to accept and pay draft of amount mentioned above and not to countermand the same. It is agreed tat the title to said safe shall not pass until notes are paid, or safe paid for in cash, but shall remain your property until that time. In default of payment you or your agent may take possession of and remove said safe without legal process, and I hereby waive all claims of damage arising from such removal. It is hereby also expressly agreed and understood that the foregoing embodies all the agreements made between us, in any way, hereby waiving all claims of verbal agreements of any nature, not embodied in this order.

Truly yours,

M. A THOMPSON.

"Net price, $ 30. Short delay."

Subsequently M. A. Thompson brought this action against H. H. Warner for a breach of contract, alleging that a new safe arrived at McPherson, in this state, for Loomis Bros., on July 25, 1883 and thereupon he made demand of said Loomis Bros. for the possession of the second-hand safe mentioned in said order or agreement, but the same was refused to him, the said Loomis Bros. declaring they would neither accept the new safe nor let the old one go. The defendant filed an answer, which contained, among other things, a general denial, and set forth said order or agreement between the parties; but also alleged that the condition precedent to the taking effect of said order was that the defendant should approve the same, and that the defendant had never approved it and had always refused so to do. The defendant for a third defense set forth that --

"The words in said order, to wit, 'The undersigned is to take possession of safe taken in exchange from Loomis Bros. on arrival of their new safe,' mean 'on arrival and acceptance by Loomis Bros. of their new safe;' that this was a condition precedent to the taking effect of the contract between the parties to this suit; that Loomis Bros. never did accept their new safe, and defendant denies that he agreed to sell or deliver to plaintiff said safe until Loomis Bros. accepted their said new safe."

To this third defense the plaintiff demurred, which demurrer, after argument and consideration by the court, was sustained. To the other portions of the answer, the plaintiff filed a reply alleging that the defendant ratified the order and agreement set forth in his answer. Trial had at the October Term, 1884, by the court without a jury. The court, at the request of the defendant, made the following findings of fact:

"1. The contract set up in defendant's bill of particulars was made and entered into by the plaintiff and defendant.

"2. The defendant ratified or approved the sale of the safe therein made by his agent.

"3. Both plaintiff and defendant well knew at time of contract that the old safe had not come to the possession of defendant, and that he only had then an equitable title or interest in it or a contract of trade for it.

"4. Both parties supposed in good faith at time of contract that said safe would come fully to the ownership and possession of defendant.

"5. Said safe did not come to the ownership or possession of said defendant, the Loomis Bros. named refusing to accept the new safe and therefore refusing to give up the old.

"6. Said new safe came for Loomis Bros. in a reasonable time, and thereupon plaintiff demanded and offered to take the old safe as per his agreement.

"7. Said plaintiff has at all times been ready and willing to comply with all the conditions of the contract upon his part and the defendant the same, only that he could not, because Loomis Bros. would not give up the safe.

"8. The reasonable value of the safe in question was $ 65."

Thereupon the court made the following conclusion of...