54 Kan. 33 | Kan. | 1894
The opinion of the court was delivered by
C. Van Horn, a person of considerable wealth, resided at Springfield, Mass. B. H. Dayton was his son-in-law, having married his only daughter. On April 1, 1875, B. H. Dayton formed a partnership with E. A. Barber, under the firm name of Dayton, Barber &■ Co., to carry on the business of private banking at Humboldt, in this state. Dayton was the active manager of the banking business. Barber was a practicing lawyer, and attended to the collections of the firm. On September 1,1884, the firm dissolved by mutual consent. Dayton died the 6th of October, 1885. At the time of his death, Van Horn had in his possession four notes signed by Dayton, Barber & Co.: One for $1,100, dated November 30,1878; another for $1,000, dated February 7, 1881; a third for $4,000, dated April 1, 1888; and a fourth for $1,200, dated December 6,1878. After the death of Dayton, and on October 23, 1886, Van Horn filed in the probate court of Allen county his demands against the estate of B. H. Dayton, deceased. The property of the estate was insufficient to pay all his claims, and on the 31st of December, 1888, Van Horn commenced his action against E. A. Barber, as a member of the late firm of Dayton, Barber & Co., to recover the amount of these notes signed by Dayton, Barber & Co., aggregating $7,300 and interest.
Barber claims, and the trial court found, that he was not
Since this case was tried in the court below, Van Horn has died, leaving as his heirs, his daughter, Mrs. B. H. Dayton, and her children. Chester J. Dayton, one of the children, is the executor of the last will and testament of Van Horn, and since his death has been substituted as the defendant in error. But this case, as presented to us, must be decided, as to all the legal questions involved in the review of the rulings of the trial court, as if C. Van Horn, the plaintiff below, were the defendant in error in this court.
It is conceded that the money evidenced by the $1,200 and the $4,000 notes went into the firm of Dayton, Barber & Co. for the benefit of that firm, with the knowledge and consent of both of the members. This money has never been actually paid to Van Horn. The court expressly found that nothing has been paid upon these two notes except interest. It appears from the findings that $5,498.72, a sum sufficient at the time to pay the $1,200 and $4,000 notes, being the proceeds of land in Ohio belonging to Dayton, Barber & Co., went into the hands of B. H. Dayton, and that he placed $4,656 of this to the credit of Van Horn in the bank of Dayton, Barber & Co., the balance received by Dayton not being accounted for. If Dayton had notified Van Horn that he had received and held this money for his benefit, or if Van Horn had authorized him to deposit any money in the bank to his credit, or if, after the money had been deposited, he had been notified or had personally used any part thereof, then the contention that the notes were paid would be good. But Van Horn never saw the deeds of the Ohio land, and never
It is argued that Dayton was the authorized agent of Van Horn to collect the money from Dayton, Barber & Co., and having received the money from the firm and applied it to his own use, that Van Horn’s notes have been discharged. But Van Horn gave no direction to Dayton, or to Dayton, Barber & Co., for Dayton to collect or receive for him the proceeds of either the $1,200 or $4,000 note; and the court expressly refused to find, although requested so to do by Barber, that Dayton was the general agent of Van Horn. Again, it is insisted, as Van Horn presented and was allowed his demand against the Dayton estate, which amounted to over $17,000, for money held by Dayton and retained by the consent of Van Horn, which included the notes sued on, that this established that Dayton received the proceeds of the Ohio land as the agent of Van Horn. But the demand by Van Horn against the Dayton estate was evidence only. It was not conclusive upon the trial court. At the time Van Horn filed his demand against the estate of Dayton, he was not fully informed of the deception and fraud practiced by Dayton while he was a member of the firm of Dayton, Barber & Co. The other evidence in the case showed that Dayton had not collected the $1,200 and $4,000 notes with the consent of Van Horn, or retained any of the proceeds of the Ohio land with his knowledge. Where there is positive evidence to sustain the findings of the trial court, this court cannot disturb the same.
The suggestion that Dayton had notes and mortgages in his hands as collateral to secure the payment of the $4,000 note is not sustained by the findings of the court or the evidence, and, therefore, Van Horn was not compelled to attempt to exhaust such securities, which did not exist, before proceeding against Barber. Evidently the indorsement by Dayton upon the note to that effect was false and untrue. At that time, he did have the proceeds of the Ohio land with which to pay the note, but disposed of the same without paying Van Horn. None of these proceeds can be traced to Van Horn, except the interest which Dayton paid therefrom in the name of Dayton, Barber & Co.
Finally, it is insisted that the notes were barred by the statute of limitations, upon the ground that the interest was paid by Dayton on account of his individual liability, and
This case was tried by a very able, experienced, and painstaking judge, who found in favor of plaintiff below on the two notes last referred to. After a careful examination of the facts disclosed upon the trial and the decision cited, we cannot find any solid ground upon which to rest a reversal of the judgment upon these two notes.
Upon the cross petition, it is insisted that the plaintiff below, upon the findings of fact, was entitled to judgment upon the $1,100 note, of November 30, 1878, and the $1,000 note, of February 7,1881. Deitz v. Regnier, supra, is cited as decisive. All the equities are in favor of Barber being relieved from any liability upon these two notes. The wife and children of B. H. Dayton ought not to be assisted, in the nature of things, beyond the strict letter of the law in recovering any money or property from Barber on account of the fraud practiced by Dayton upon his partner. None of the money for which the $1,100 note was given went to the benefit of the firm of Dayton, Barber & Co. The court made the finding as to that note that it was a private and personal transaction between Dayton and Van Horn only. Dayton, with the knowledge of Van Horn, paid the debt for which the $1,000 note was given by taking from the firm good notes aggregating over $1,000, and agreeing with Van Horn to collect them personally for his benefit. Van Horn, after full notice, trusted Dayton, not the firm, for the collection of these notes, and if he has not received the proceeds of the same, Barber is not responsible.
The prayer of the cross petition will be denied. The judgment will be affirmed.