Wolcott & Lincoln, Inc. v. Butler

• Decision Date: 07 March 1942
• Docket Number: 35429.
• Citation: 122 P.2d 720,155 Kan. 105
• Parties: WOLCOTT & LINCOLN, Inc., v. BUTLER.
• Court: Kansas Supreme Court

122 P.2d 720

155 Kan. 105

WOLCOTT & LINCOLN, Inc., v. BUTLER.

No. 35429.

Supreme Court of Kansas

March 7, 1942

Syllabus by the Court.

An "action on account" normally includes open account and book account or book debt, but this does not mean that every type of action where one or both of the parties thereto kept some books or records is an action on account.

The word "account" is a generic term, difficult to define, having various meanings, depending somewhat upon the surrounding circumstances and the connection in which it is used.

The plaintiff's demurrer to defendant's counterclaim admitted, for purposes of demurrer, all pertinent facts well pleaded in the counterclaim.

The relation of "principal" and "agent" is a fiduciary one, and, if a wrong arises because of conduct of agent, the same remedy exists against wrongdoer on behalf of principal as would exist against a trustee on behalf of the cestui que trust.

Where in course of conducting business for his principal, there comes into the hands of agent money or property belonging to principal, principal's right of action to recover such money or property "accrues", and statute of limitations begins to run only when demand is made on agent or principal has notice of agent's repudiation of his trust.

A cause of action set forth in counterclaim, filed August 23, 1939 alleging that customer and broker entered into an oral agreement on July 31, 1928, by which broker was to purchase and sell grain on market for customer, and that in February 1929, broker was in possession of money owing to customer, and that broker never offered to pay such money to customer, and that customer made demands on broker in September, 1938, for accounting and settlement, and that demand was refused, was not barred by limitation, since statute of limitations began to run only when demand was made on broker, as against contention that counterclaim stated cause of action on account which on its face was barred by three-year statute of limitations. Gen.St.1935, 60-306.

1. The relation of principal and agent is a fiduciary one, and if a wrong arises because of the conduct of the agent the same remedy exists against the wrongdoer on behalf of the principal as would exist against a trustee on behalf of the cestui que trust.

2. Where, in the course of conducting business for his principal, there comes into the hands of the agent money or property belonging to the principal, the principal's right of action to recover such money or property accrues and the statute of limitations begins to run only when demand is made upon the agent, or the principal has notice of the agent's repudiation of his trust.

Appeal from District Court, Clark County; Karl Miller, Judge.

Action by Wolcott & Lincoln, Incorporated, against Carl B. Butler, to recover amount allegedly due and owing to plaintiff, on account of services rendered and money advanced by plaintiff to defendant. The defendant filed a counterclaim. From the judgment, the plaintiff appeals.

M. W. Borders, Wilfred Wimmell, and Robert B. McCreight, all of Kansas City, Mo., and George R. Gould, of Dodge City, for appellant.

Francis C. Price and Floyd N. Cossman, both of Ashland, for appellee.

HARVEY Justice.

This is an appeal from an order of the district court overruling a demurrer and the motion to strike a part of the counterclaim. The pleadings may be summarized as follows: Plaintiff in its petition, filed February 6, 1936, alleged it is a corporation organized and existing under the laws of Missouri, with its principal place of business at Kansas City; that it is duly qualified and licensed to do business in Kansas; that at various times during 1928 and January, 1929, defendant employed plaintiff to purchase and sell wheat and corn for him on the Kansas City and Chicago markets, the defendant agreeing to pay plaintiff a commission on purchases and sales and to pay plaintiff any advances plaintiff made on account of such purchases; that pursuant to the employment plaintiff made certain purchases and sales and advanced certain sums of money, with the result that on January 18, 1929, there was due and owing to plaintiff on account of such services rendered and moneys advanced the sum of $1,393.24, which sum plaintiff duly demanded of defendant, who has failed and refused to pay; that shortly after January 18, 1929, defendant, who was then a resident of Kansas, absented himself from the state and plaintiff was unable to get service upon him. The prayer was for judgment for the amount claimed to be due with interest.

After some procedure which has no bearing on the present status of the case and for that reason need not be noted, and on August 23, 1939, defendant filed his amended answer and counterclaim in which defendant denied the material allegations of the petition, except as specifically admitted or qualified, and specifically denied he was indebted to plaintiff in any amount, and alleged if any such indebtedness ever existed it had long since been fully paid and satisfied; and in what is denominated a counterclaim defendant admitted the corporate existence of plaintiff, as alleged, and that defendant had been absent from the state of Kansas as alleged, and further alleged that about July 31, 1928, plaintiff and defendant entered into an oral agreement whereby defendant employed plaintiff as his agent, broker and employee to purchase and sell wheat and corn on the Kansas City and Chicago markets the defendant agreeing to pay plaintiff a commission on all purchases and sales; as a part of the agreement it was agreed that defendant would advance to and deposit with plaintiff as his agent, broker and employee, money and credits from time to time with which to pay for such purchases and sales, and that all profits accruing from such purchases and sales should be retained by plaintiff as the agent, broker and employee of defendant for the purpose of buying and selling other commodities on said markets; that thereafter and at various dates up to and including February 23, 1929, in pursuance of said agreement, defendant deposited with plaintiff certain sums of money, goods and credits, including profits from purchases and sales of wheat and corn, for the purpose of buying and selling wheat and corn on the Kansas City and Chicago markets for and on behalf of defendant as his agent, broker and employee, and as such agent, broker and employee plaintiff did during the time mentioned make various and sundry purchases and sales on said markets as such agent, broker and employee with the property, funds and credits belonging to defendant; that defendant does not know and is unable to state the exact number of such purchases, sales and transactions, or the deposits of money, goods and credits on account thereof, made prior to January 14, 1929, but alleges that on that date, as a result of deposits of money, goods and credits and profits from the purchase and sale of wheat and corn and other Board of Trade transactions, defendant had an unencumbered credit balance on deposit with plaintiff, as his agent, broker...