Hays v. John V. Farwell & Co., 53 Kan. 78

53 Kan. 78 | Kan. | 1894

The opinion of the court was delivered by

HortoN, C. J.:

It is insisted that the plaintiffs below had no joint interest in the property or the proceeds thereof, and, therefore, that there was such a misjoinder of plaintiffs, and such a variance between the allegations of the petition and the proof, that the objections to the testimony and the demurrer thereto should have been sustained. The proof showed that the notes and mortgages were all executed on the same day and filed at the same time, and that there was a verbal agreement between Farwell & Co. and Skinner that the liens should be concurrent. It is the rule that where two or more parties have a joint interest in personal property which is injured, or if the right interfered with is a right possessed by two or more in common, they must all join in an action for the interference with it.

1. Chattel mortgages-con-plaintiffs. “The concurrent execution and delivery of two chattel mortgages upon the same property, to different ,° , , , . parties, makes the mortgagees tenants in common the property mortgaged, and they should join an ac(.jon for unlawful taking or the conversion of it.” (Welch v. Sackett, 12 Wis. 243; Hill v. Gibbs, 5 Hill, 56.)

We think, therefore, that under the evidence offered, the plaintiffs below had such a joint interest in the property converted as permitted them to jointly bring the action, and that there was no fatal variance between the'allegations of the petition and the proof.

It is next insisted that the instructions of the court were erroneous and misleading. In August, 1887, Wilson went to Chicago to see Earwell & Co., to whom he was indebted in a large amount. They agreed upon a plan by which the creditors of Wilson & Pox, of whom Farwell was the largest, would release Pox and take Wilson alone. It was also arranged to form the partnership of W. J. Wilson & Co. At Chicago, Parwell & Co. drew up and gave to Wilson a letter, of which the following is a copy:

“JOHN V. EABWELL & 00., CHICAGO, NEW XOBK, MANCHESTEE, BASIS. CBEDIT DEPAEIMENT.

Chicago, August 20, 1887.

“ GentlbmeN : After examining thoroughly the affairs of Messrs. Wilson & Fox, of Wichita, Kas., we are of the opinion that the contemplated dissolution of partnership will be for the benefit of all parties concerned. We are satisfied that, after the dissolution, Mr. W. J. Wilson will have a surplus of at at least $25,000 in his business, and we are entirely willing to release T. L. and J. B, Pox, and hold our present claim against Wilson & Pox against W. J. Wilson only. Yours truly, John Y. Parwell & Co.”

Afterward, at Wilson’s solicitation, this letter was signed by J. H. Walker & Co. Wilson went from Chicago to New York. It is claimed by defendant that he showed the Par-well letter to Blumenthal Bros. & Co., of whom Wilson & Fox had ordered, in the spring of 1887, a bill of goods amounting to about $2,000; that by the letter Wilson induced them to ship the goods ordered by Wilson & Fox to W. J. Wilson & Co., and also to sell him on credit a bill of goods which was afterward delivered to Wilson & Co., but Wilson denied that he showed the letter to Blumenthal Bros. & Co., or that he spoke to them about it. The court gave various instructions requested by the plaintiffs below and the defendant excepted. If the instructions given were not sufficiently definite, or if they did not apply to the precise evidence developed upon the trial, other instructions should have been requested. All of the instructions requested by the defendant, excepting one, which was modified so that the jury “might consider the circumstances therein referred to as evidence of fraud,” were given. Farwell & Co., without any knowledge of or consent thereto, could not be held responsible by their letter “for other false statements made by W. J. Wilson to the Blumenthals in New York city as to his financial condition or pecuniary ability.” . This case differs materially in many of its aspects from the Wafer case, 46 Kas. 597. In that case, it was found that the insolvent debtor obtained goods from the attaching creditors by false and fraudulent means; that the goods were received by the debtor on the 17th day of March, 1884; that the chattel mortgage was given to the bank, the antecedent creditor, within three days thereafter; and that the letter of the antecedent creditor induced the attaching creditors to give the insolvent debtor credit and sell him goods. In this case, Wilson denied that he showed the letter of Far-well & Co. to Blumenthal Bros. & Co., or that he obtained any credit or goods from them thereby.

% SnsteSoST The chattel mortgages were not executed until the 3d of February, 1888, six months after the date of the letter, and long after the goods had been received by Wilson & Co., and not until the season for the sale of fall and holiday goods had passed. The debt from Wilson & Co. to Farwell & Co. increased between August, 1887, and February, 1888, about $9,000, an amount much more than Blumenthals’ debt, while 40 per cent, of the latters’ debt had been paid. On the 13th of December, 1887, Wilson & Co. sent Blumenthal Bros. & Co. a check for $500, and suggested in their letter containing the check that they had “ bought too many nice cloaks,” and asked “them to help them out of some of them.” This was an intimation that they were willing to let them take them back again. Then, again, the evidence of Wilson, Harding and Fox all tended to prove the good faith of Farwell & Co. in writing the letter. Criticism may be made upon some of the instructions given, if considered separately, but all of the instructions should be construed together. In this light-, no one was prejudiced thereby.

Upon the merits of the case, the claim of defendant below was, “that Wilson perpetrated his fraud when he purchased the goods from the Blumenthals; that he obtained them under false pretenses; that his fraud was consummated; that the giving of the mortgages did not aid him in doing that, but it was the giving of the letter of August 20, 1887, by Farwell & Co.;” and further, that on account of the false statements contained in that letter and the knowledge thereof by Ear-well & Co., the latter could not accept or obtain a chattel mortgage upon the goods of Wilson & Co. adverse to the attachment lien of the Blumenthals.

The following’ instruction, which was given, covers all the material facts of the claim so made:

“If Farwell & Co. wrote the letter of the date of August 20, 1887, in evidence, and gave the same to Wilson with the intention that the same should be used by Wilson to obtain credit, and the statements in said letter in relation to the financial character and ability were false and known to be false by Farwell & Co., and Wilson showed this letter to Blumenthal Bros. & Co. for the purpose of inducing the latter to sell him goods on credit, and the Blumenthals believed the statements in said letter to be true, and on the faith thereof sold the goods to Wilson charged for in the attachment suit of Blumenthal Bros., you must find for the defendant.”

The jury found for plaintiffs below, and therefore all conflicting evidence must be resolved in their favor.

In one view of the case, the tenth instruction might be complained of; but this instruction was followed by the one just quoted, which permitted the defendant below to defeat the Farwell mortgage, if the letter of August 20, 1887, was known by Farwell & Co. to be false, and was given to Wilson for the purpose of obtaining credit, whether that credit was for the purpose of releasing Fox & Son or used to obtain goods. This instruction really covers all that was claimed. We do not think it necessary to comment further.

The judgment will be affirmed.

All the Justices concurring.