Beebe v. Carter

54 Kan. 261 | Kan. | 1894

The opinion of the court was delivered by

Johnston, J.:

This was an action to recover for lumber and other building material, furnished by the Carters for the erection of a building in Marion upon a lot owned by W. B. Beebe, which he had contracted to sell to C. S. Mealey. It was alleged that Mealey and Beebe were indebted for the material so furnished, and a foreclosure of mechanic’s lien was asked. When the action was begun the petition set forth that the debt was due from Mealey, and further alleged that Beebe and others claimed an interest therein, which it was stated was inferior to that of the plaintiffs. Service was had upon Beebe by publication. Afterward John F. Carter procured leave to amend his petition, and T. A. Carter to amend his cross-petition, by which it was alleged that W. B. Beebe was also personally liable for the material which had been used in the construction of the building.

The first complaint is of the ruling of the court in permitting these amendments to be made. It is insisted that, as no money judgment was originally asked from Beebe, and as he was served by publication only, the allowance of the amendment was prejudicial error. Beebe had made a general appearance in the action long before the amendments were allowed. Personal service was obtained upon Mealey and other of the defendants in the county where the action was brought, and hence there is no ground for the claim that the action was wrongfully commenced. After Beebe made a personal appearance in the action, it was within the discretion of the court to allow the amendments to the pleadings, and we are unable to say that the amendments that were allowed were any abuse of that discretion.

There is a further objection that the testimony is insufficient to sustain the judgment that was given. Although there is some uncertainty and conflict in the testimony, we cannot, under the rules which control in this court, hold it to be insufficient. There being some evidence to- sustain the findings and judgment, we cannot undertake to weigh the testimony of the witnesses to determine on which side the preponderance lies, but must accept the decision of the trial court as final and conclusive.

It is insisted that the testimony fails to show that W. B. Beebe ever became liable to pay for the lumber and building material that were used by Mealey; and, further, that it does not show that S. J. Beebe, with whom the negotiations were had, had any authority to contract for his father, or bind him for the material purchased. The testimony shows that W. B. Beebe was a nonresident of Kansas, and that he transacted the greater part- of his business in Kansas through his son, S. J. Beebe. There is testimony tending to show that S. J. Beebe represented his father in other transactions similar to the one in question, and that all such dealings were recognized and ratified by the father. In fact-, the testimony of the son tends to show that he made all the bargains and signed all the contracts made by his father, and it further tends to show that he was really the general agent of his father in Kansas. There is some testimony to sustain the finding that the liability for the building material was Beebe’s own debt. While Mealey was erecting the building with a view of ultimately owning the property, and negotiated for the lumber with which to build it, the title to the lot was in W. B. Beebe, and, more than that, he agreed to furnish money to Mealey to make the improvements thereon. There is testimony tending to show that the Carters refused to furnish material to Mealy on his own credit, but did furnish it at the request and on the credit of Beebe. There is enough in the evidence to support the view that the undertaking of Beebe was original, and therefore not such as falls within the statute of frauds, or open to the objection that there is a want of consideration. It is true there is testimony that the material was charged to Mealey upon Carters’ books, but this circumstance, although of value in determining to whom credit was given, is not controlling nor conclusive. All the facts and circumstances are to be taken into account in determining on whose credit the sales were made, and as the district court, on competent proof, has found an original liability against Beebe, that finding is conclusive. The judgment of the district court will be affirmed.

All the Justices concurring.