27 Kan. 437 | Kan. | 1882
The opinion of the court was delivered by
This case has been to this court once before, and the opinion then filed will be found in 22 Xas. 89. The judgment theretofore rendered was at that time reversed, and the case remanded for another trial.
This second trial was had before the district court, without a jury; special findings of fact and conclusions of law were made, and judgment was entered thereon against the plaintiffs in error for the sum of $4,180.53. Exceptions were duly taken, and the record is now before us for review.
“ Said instrument of writing was then and there delivered by the said O. P. Faulkner to the plaintiffs; but the same was intended by the parties at the time only as security for certain advances, which were to be made by the plaintiffs to the said O. P. Faulkner, to wit: Four acceptances of $2,000 each, making in all $8,000, which were to become due at the times they agreed upon, and said cattle were to be fed by the said O. P. Faulkner until fit for market, and were then to be forwarded by him, and consigned to the plaintiffs at Chicago, for sale on commission. The net proceeds of the sale to be applied, first, to reimburse the plaintiffs for their advances; and second, the remainder thereof to be paid to the said O. P. ’Faulkner.”
Subsequent findings show that the four drafts of $2,000 each were drawn, accepted and paid by Denny & Redman, in accordance with their agreement; that a certain portion of the cattle named in said bill of sale were shipped, in pursuance of said agreement, by Faulkner in his lifetime to Denny & Red-man, and by thém sold; that out of the proceeds they reimbursed themselves for two acceptances already paid by them, and the balance of the net profits they remitted to Faulkner; that subsequently, having accepted and paid the other two
The only question which we shall consider in this case — indeed the only question, as we see, now presented by the record other than mere technical questions, and those not affecting the substantial rights of the parties — is the question above indicated, as to the true measure of Denny & Redman’s liability. Counsel for defendant in error insist that the district court followed the exact language and ruling of this court, as stated in the opinion heretofore filed. In a certain sense, this contention of counsel is correct; yet the language of that opinion was based upon a different state of facts, and used in disposing of a different question from that now presented. Indeed, the point now presented by counsel was not at all considered or passed upon by the court then. In that opinion, after referring to the fact that Denny & Redman did not proceed under the chattel-mortgage law, but shipped the property to Chicago and there disposed of.it, we used, it is true, this language:
The judgment of the district court must therefore be modified in accordance with these views; and the case will be remanded with instructions to enter a judgment against Denny & Redman for the difference between their advances and the net proceeds of the sale, to wit, $646.18, and interest at 7 percent, thereon from the 29th of June, 1872. In all other respects, and except as so modified, the judgment of the district court will be affirmed. The costs of this court will be divided between the parties.