Zeek v. Wiley

• Decision Date: 11 June 1887
• Citation: Zeek v. Wiley, 36 Kan. 731, 14 P. 269 (Kan. 1887)
• Court: Kansas Supreme Court
• Parties: HUGHES & ZEEK v. L. C. WILEY

14 P. 269

36 Kan. 731

HUGHES & ZEEK v. L. C. WILEY

Supreme Court of Kansas

June 11, 1887

Error from Elk District Court.

ACTION brought by John Hughes and C. B. Zeek, partners as Hughes & Zeek, against L. C. Wiley, to recover $ 970 as damages for an alleged breach of a contract for the sale of certain corn and millet by defendant to plaintiffs. The record shows substantially, that about September 6, 1884, the parties entered into an agreement by the terms of which Wiley sold to Hughes & Zeek one hundred and seventy tons of millet, to be delivered in stack by defendant to plaintiffs on the farm of defendant--one hundred and forty-five tons thereof at $ 2.80 per ton, and twenty-five tons thereof at $ 3 per ton the difference in price being caused by the length of haul to the farm of Hughes; that the millet was to be paid for within thirty days from the time it was stacked. It further appears that plaintiffs were feeding cattle for sale on the market and that it was understood at the time of making the contract that the corn and millet were designed for that use. The millet was cut and stacked on the farm of defendant and that of his mother, but the millet was not delivered, as plaintiffs claimed, by reason of the fault of Wiley; and all of the corn was not delivered for the same reason. Plaintiffs claimed that feed was scarce, and, as winter came on, greatly advanced in price, and that they were compelled to buy feed and pay the highest prices therefor, and hence that they were greatly damaged by the neglect and refusal of the defendant to comply with his contract.

At the time the contract was made, Wiley signed the following written instrument:

"HOWARD KAS., September 6th, '84.--Received of John Hughes one hundred dollars, to apply on millet and corn bought of me on my farm--millet to be No. 1, at $ 2.80 and $ 3 per ton, corn to be cut in shock, and no stock allowed in field where crop is, and fire-breaks broke sufficient to keep out all fires. This agreement includes all corn on my farm, about fifty acres, more or less; all the corn cut if possible, and not less than thirty-five acres cut; corn to be twenty cents per bushel. If not all cut, the balance to be delivered at John Hughes's farm, or where he may direct.

L. C. WILEY."

The defendant answered by a general denial; and also that on September 6, 1884, he was a minor. Defendant, further answering, said that--

"On or about the 24th of December, 1884, and after the defendant became of full age, he restored to the plaintiffs all money and property received from them, and entered into another contract, by which all previous contracts with the plaintiffs were disaffirmed and annulled, and by which said subsequent contract he sold to plaintiffs a large quantity of corn, to wit, one thousand one hundred and eighty-five bushels and twenty-three pounds, at and for the price of thirty cents per bushel, which amounted to the sum of two hundred thirty-seven dollars and six cents; that plaintiffs received the said corn, and paid him the sum of two hundred dollars as part payment thereon, and neglected and refused to pay the remainder, thirty-seven dollars and six cents, and still neglect and refuse to pay the same, although often requested so to do."

The defendant prayed judgment for $ 37.06. Plaintiffs replied by a general denial. Trial at the October Term, 1885. The defendant interposed a special demurrer to plaintiffs' evidence as not sufficient to show their right to recover any damages so far as the millet was concerned. This demurrer the court sustained. It was admitted by the parties that there were 1,423 bushels of corn, concerning which they had bargained; that the plaintiffs had received 1,185 bushels thereof, and that $ 37 on the purchase-price of the corn received had not been paid by the plaintiffs. The jury found for the defendant, and assessed the amount of his recovery at $ 20. The plaintiffs moved for a new trial, which was denied. Thereupon the court rendered judgment for ...