84 Kan. 235 | Kan. | 1911
This action was brought by the bank to recover a judgment on a note given by the defendant. There was evidence which tended to show that the note-arose out of the following transaction: Swanson and Claflin ordered one sixteen-horsepower Huber traction engine of the Huber Manufacturing Company, of Marion, Ohio, through the defendant, the local agent for the 'Huber company at Scandia, Kan. The order on the part of the company was executed by C. E. Miller,, as agent, and by Swanson and Claflin, the purchasers, and contained a contract of warranty that the engine was made of good material, was well constructed, and, with proper management, capable of doing well the work for which the machine was made and sold; that if inside of six days from the date of its first use it should fail in any respect to fill the warranty, written notice should be given to the company at its home office and to-the agent, and a reasonable time allowed to get to the-machine with skilled workmen .and remedy the defects. The engine proved defective, and Swanson and Claflin notified the local agent verbally and he notified the-company, and an expert was sent and attempted to make it work. It again failed to work, and again notice was given and an expert came two or three times, but it still failed to work properly, and the purchasers, delivered the engine to the local agent, who wrote the company that the engine had been brought in and to-send a man, with proper authority, to compromise.
Thereafter Mr. Miller, the agent who signed the contract, came and made the following settlement: The-Huber Manufacturing Company was to return forthwith the note in suit to the defendant and take back the engine sold to Swanson and Claflin, and the matter should be fully settled. This agreement was made-November 12, 1907.
It also appeared that Swanson and Claflin had given.
The note in suit was due, on its face, December 26, 1907. Sometime before that date the agent, C. E. Miller, was in the plaintiff bank and talked with the cashier, Bartos, about the note before its alleged purchase, .which the evidence shows, if made at all, was made by the cashier, who testified in substance that the only investigation he made as to the financial standing of the defendant was that “when Mr. C. E. Miller first mentioned the note I asked him who this Freeburg was, and it was through him that I got the standing of Freeburg.” Whether the agent of the company, in arranging the alleged sale to the bank, made any representation as to the responsibility of Freeburg does not ^appear. It does appear, however, that the proposition was made to sell the note to the bank at a discount of $50. December 16 thereafter E. D. Streeter, manager of the Huber Manufacturing Company, addressed a letter to the Bank of Wilber which reads, in part, as follows :
“Mr. Miller stated you offered to give us $950 for this note. We have decided to let you have the note for*238 $950. We are inclosing herewith the note properly indorsed. Please send us draft for same by return mail, and oblige.”
The plaintiff, by its cashier, Bartos, produced the discount register of the bank at the trial, and, after identifying it, testified:
“Ques. This discount register has a column headed ‘Discount’; another column to the right of that, headed ‘Amount paid’; and in the first column, against this Freeburg note, .is written, in ink, ‘$50,’ while against this Freeburg note, in the other column, it is blank; is not that the fact? Ans. Yes, sir; that is the fact.
“Q. In said discount register there is a column headed ‘Drawer or maker,’ in which appears the name of J. A. Freeburg, and next to that column is another column, headed ‘Drawee or indorser,’ and in this last-mentioned column, opposite the name of J. A. Freeburg, it is blank, there being no entry as to the drawee or indorser on the Freeburg note; is not that a fact ? A. That is a fact.”
A copy of the draft was also introduced in evidence, viz.:
“The Bank of Wilber. Wilber, Neb. Dec. 18, 1907. “$950. No. 12,962'
“Pay to the order of Huber Manufacturing Co. $950, nine hundred fifty and no-100 dollars. To First National Bank, Lincoln, Neb. Jos. Bartos, Cashier.”
Indorsed: “Pay to the order of City National Bank for deposit. The Huber Mfg. Co., E. D. Streeter, Mgr. Paid through Lincoln Clearing House, Dec. 20, 1907. City National Bank.”
. Besides the showing of irregularity in the copy of the bank’s register, in that no mention was made of the drawee or indorser, the cashier testified that he had not notified the Huber Manufacturing Company of the nonpayment of the note,- and did not know of any notice having been given to it. After he heard from the defendant, soon after the alleged purchase of the note, he immediately turned the note over to the attorneys of the plaintiff for collection, who immediately brought this suit. Both the cashier, Bartos, and the manager
After the close of the evidence the court instructed the jury, and refused some instructions requested by the plaintiff, such refusal being assigned as error. The-jury retired- and returned the following special findings, excepting question- No. 11, which the court had correctly instructed was immaterial:
“ (1) Ques. From whom, if anyone, did the plaintiff purchase the note in question in this action? Ans.. No one.
“(2) Q. What did the plaintiff pay for said note,, if anything? A. Nothing.
“(3) Q. To whom was such consideration, if any,, paid? A. No one.
“ (4) Q. Was such note purchased prior to maturity —that is, prior to December 26, 1907? A. No.
“(5) Q. Did the plaintiff bank have any notice that. Freeburg was intending to refuse or had refused payment of said note? A. Yes.
“ (6) Q. Did the plaintiff bank have any notice that the note in suit was in payment for the engine testified about in this action ? A. Yes.
“(7) Q. If you answer questions 5 and 6 in the affirmative, then state of what such notice consisted, by whom made, and in what manner. A. Stamp on. back of note and Miller verbal.
“(8) Q. Did the indorsement, 'For collection,’ constitute notice to the plaintiff of an infirmity in the-note in suit? A. Yes.
“(9) Q. If you answer question 8 in the affirmative, did that constitute the only notice that plaintiff had?' A. No.
“(10) Q. Before the maturity of the note in suit did the defendant and Miller, the agent of the Huber Manufacturing Company, make a -settlement whereby this note was to be returned to him, and the company-get back the engine? A. Yes.’-’
The circumstances under which the bank claims to have bought the unsecured note were probably considered by the jury, as they had the right to consider them. The plaintiff’s evidence tended to show: That the sole maker resided in another state, and the bank made no inquiry as to his responsibility, except from the apparently irresponsible agent of the Huber Manufacturing Company, who was promoting the sale, and
The judgment is affirmed.