41 Kan. 496 | Kan. | 1889
The opinion of the court was delivered by
I. It is claimed by Messrs. Durkee & Stout, who entered into a contract with Messrs. Gunn & Marr on June 1, 1886, that the dissolution of the firm of Gunn & Marr terminated their agency; that Marr, the retiring member of the firm, had no authority to sell or transfer his interest or the interest of the firm in the contract of June 1, 1886, to Gunn; therefore, that as no new contract was made in writing by
“ 7. The partnership of Gunn & Marr was dissolved July 23, 1886, by E. D. Marr retiring, W. C. Gunn buying out the interest of said Marr in the business, including his interest in this contract.
“ 8. An extended notice of the dissolution of this firm, with the purchase of Marr’s interest in the business, and that W. C. Gunn would continue the business, was given in the Port Scott Daily Monitor of July, 1886, which paper was taken by both defendants.
“ 9. Immediately after such notice of dissolution, the local notice above referred to (in the fourth finding) was signed by W. C. Gunn instead of Gunn & Marr, and said Durkee & Stout, particularly W. H. Stout, was in the habit of meet*501 ing said Gunn in a business way as often as once or twice a month.
“10. Said defendants knew of the dissolution of the firm of Gunn & Marr, and that W. C. Gunn was conducting the business of Gunn & Marr, and was acting instead of Gunn & Marr in doing whatever he did under this contract.
“11. Said Úurkee & Stout never objected or made any question as to the right of said W. C. Gunn to act in the place of Gunn & Marr.”
In our opinion, on account of the conduct and acts of all the parties, the rights, duties and liabilities of W. G. Gunn were the same after dissolution as before, excepting that the contract of June 1, 1886, was to be fully carried out on the part of Gunn & Marr by Gunn only. Therefore the point made that the contract of June 1 was in its nature personal only, and hence not assignable, need not under the findings be discussed.
We have examined the record, and think that the reasonable interpretation of the evidence of the plaintiff below and the fair inferences therefrom fully support the findings of fact.
II. As neither Messrs. Gunn & Marr nor the continuing member of the firm, W. C. Gunn, had any interest in the land described in the contract, but only shared in the surplus or profits, the agency of Gunn was revocable. (Hawley v. Smith, 45 Ind. 183.) But although Messrs. Durkee & Stout had the power to annul the contract and refuse to permit Gunn to act, yet when they so refused without any just reason or excuse, after having recognized Gunn as the continuing member of the firm, they were liable to him for all damages resulting proximately from the breach of the contract.
III. The court allowed Gunn as his measure of damages one-half of what the land would have sold for at the commencement of his action above the price Messrs, úurkee & Stout agreed to accept for the land, as stated in the contract. It is contended that the rule followed was erroneous. The findings of the court show:
*502 “17. That on February 23, 1887, when this suit was brought, said land taken as a whole would have sold out in lots at the rate of $750 per acre.”
“13. That by reason of a controversy in the city over bonds voted to the K. N. & D. R. R., and for other reasons, the real-estate market was very dull in Fort Scott during July, August, September, October, November and December, 1886, and in January, 1887.
• “14. That W. C. Gunn, for the purpose of disposing of this piece of land and other land which he had for sale, and for the purpose of ‘booming’ the city, expended considerable sums of money in advertising the city during the latter part of 1886, and about January 1, 1887, took a very active part in getting up a syndicate (for the purpose of buying and selling land and advertising the city), composed in part of foreign capitalists, and was mainly instrumental in raising the stock of the syndicate — taking $10,000 of stockin the same.
“15. That mainly by the formation of said syndicate real estate in the city of Fort Scott during the early part of February, 1887, suddenly increased in value — almost double.”
We think that Gunn, owing to the wrongful revocation of his agency by Messrs. Durkee & Stout in the early part of February, 1887, was entitled to recover such compensation or damages as would be equal in amount to his share of the profits which would have resulted had the lauds been sold by him. (Hawley v. Smith, supra.) This is what he really recovered. Therefore no erroneous rule was followed, nor are the damages allowed excessive. Messrs. Durkee & Stout cannot take advantage of their own wrongful acts, and as Gunn was prevented by them from performing a contract, his remedy is the same as if he had performed.
We perceive no error in the record, and therefore the judgment of the district court will be affirmed.