5 Wyo. 291 | Wyo. | 1895
Plaintiffs shipped from Harrison, Nebraska, in their own name, a car load of oats to Casper, intending them for a pur
... Although it does not clearly appear,.it seems, to. be disclosed by the evidence that-the oats-were taken to a store commonly referred to in the. testimony as . the Mercantile; Company’s store,-the business-of.which iwas: usually .transacted by .Smith. He was also a member of the firm, of L. Smith & Co., bankers. It is attempted to .make.the banking, firmcf L. Smith & Co., of which firm J. B. Okie was also a member, responsible for the purchase -price .of the oats.
. .The. .only fact which we find in the evidence at'all tending to, connect that.firm:with.the purchase is;in the testimony of George W.-Hester, who-says that while he-and Smith were discussing the matter of the sale, and before it was consummated,-,the-latter said-to .Hester.:,- “We :are running'-a b'ank here,” and also, “You will run no risk; you will be safe in your money;'you will get-your, money for.your oats.” We aye: unable to discover any .testimony..showing or tending to show, that the banking firm ever received the oats or any of them; or any of the - proceeds thereof, except the sum of $5.5.00,- which, Mn Okie testifies^ -was deposited in the bank to' the credit of G. .W.-Hester, and was by Okie, who, after-wards,. it .seems, had assumed -the obligations .of .the bank, paid to. Virgil -Hester.-' Okie testifies -that'Smith informed him this deposit .had been.-made by -“the store” -to the credit of Hester;-but there is no direct-testimony covering the matter of the original deposiL -Okie testified that when he paid the $55.00 to Hester the latter informed him that- they had sold some-cats ..-to the, mercantile company... There .is testi-monj-that statements were made by each of .the plaintiffs to the effect that they had sold the oats to the mercantile .company, and a witness connected with C. H. King & Co. testified that Hester-■& Son had,at one.-time, drawn-a .draft, bn the Smith
The total amount for which the oats and some sacks were sold was $353.00."
Smith paid the freight, $36.40, which was apparently to be credited on the price, and with .the. $55.00 subsequently received on account of the deposit in the bank; leaves the bat-anee sued for as $261.60.
Neither Smith nor Shaffner appeared in the suit below. The defendant Okie filed an answer denying every allegation of the petition.
The defendant Okie would not be liable unless the firm of L. Smith & Co., bankers, were, and by reason of his membership in that firm. If that firm was not the purchaser of the oats, then it was not liable. We do not think the court erred in finding said firm not indebted to the plaintiffs. The best construction which can be given to the evidence favorable to the plaintiffs shows a conflict .in the testimony; and there being evidence to sustain the finding, the judgment will not be reversed. Bank v. Dayton, 1 Wyo., 336; O’Brien v. Foglesong, 3 Wyo., 57; Ketchum v. Davis, 3 Wyo., 164.
In our opinion, however, there was not sufficient evidence to establish the liability of the firm of L. Smith & Co. Plaintiffs failed to connect them with the purchase made by Smith.
It is urged that the court erred in not taking the default of Smith and Shaffner and rendering judgment against them. So far as Shaffner is concerned, his liability, like that of Okie, depends upon the establishment of an indebtedness from the' firm. The parties are not in a position, however, to successfully urge this point, even if error was committed in the-respect indicated, upon which we express no opinion. Neither Smith nor Shaffner are before this court, no summons in error having been served upon them for all that appears by the record.
It is contended that the court committed error in refusing to grant a new trial on the ground of surprise and newly discovered evidence. The affidavits filed in support of the motion To sustain these grounds utterly fail to show any such
So far as the letters and the testimony of Virgil Hester and G. W. Hester are concerned, it is clear that they could, by the: use of proper diligence, have been procured at the trial.
The declarations of Smith made after the sale had been consummated, in the absence of any other evidence showing or tending to show that the firm of L. Smith & Co. had bought or received the oats, such a transaction not ordinarily being within the scope of the business of a mere banking firm, and nothing appearing to show that this firm ever engaged in such business, we do not think would have been admissible. Heffron v. Hannaford, 40 Mich., 305; Uhler v. Browning, 28 N. J. L., 79; Thorn v. Smith, 21 Wend., 365.
Mr. Hester testified that he dealt with Smith. He knew
This disposes of all the questions raised by counsel. The case now here is practically between plaintiffs and the defendant Okie.
The judgment of the district court in favor of J. B. Okie and L. Smith & Co., bankers, as a partnership, is affirmed.