52 Kan. 419 | Kan. | 1893
The opinion of the court was delivered by
Jacob Leu & Sons, wholesale dealers in hardware, at Atchison, sold goods to Mayer, Sells & Co., who were retail dealers in hardware at Larned, Kas. In August, 1888, Mayer, Sells & Co, owed Jacob Leu & Sons, upon two promissory notes and an open account, $730.79, with certain interest which had accrued. At the latter date/the firm of Mayer, Sells & Co.-, which was composed of Daniel Mayer, George A. Sells, and A. A. Thorp, dissolved, Mayer pur
At the trial, the defendants offered testimony to the effect that, when Keyes came to Larned, he agreed that if Sells would surrender the second mortgage which had been given to him, and permit the firm of Jacob Leu & Sons to get from Mayer a mortgage upon the entire stock of goods which should stand next in priority to that of the bank, he would release Sells and Thorp and look to Mayer alone for the payment of the debt. The plaintiffs denied that there was any release of any. member of the firm, and denied also that Keyes had any authority to release or discharge anyone from the debt. It may be remarked that thé notes of the firm were not canceled or surrendered.
“If you believe, from a preponderance of all the evidence in this case, that this agent, Keyes, came here authorized by the firm of Jacob Leu & Sons to settle the debt, and at that time he agreed with Sells and Thorp, in consideration of Sells canceling his mortgage, and in consideration of Mayer giving him a new mortgage, a second mortgage on this stock of goods, he*would release his claim against Sells and Thorp, then you should find for the defendants Sells and Thorp; but before you find for defendants Sells and Thorp, you should also find, from a preponderance of all of the evidence in this case, that this agent, Keyes, was authorized by the firm of Jacob Leu & Sons to make the arrangement with Sells and Thorp which he did make with them, or that his conduct as agent of Jacob Leu & Sons was such as to lead Sells and Thorp to believe that he was authorized to make this arrangement with them to settle their debt, and that in good faith Sells and Thorp acted upon their belief that he had that authority.”
The trial resulted in favor of the defendants, and the last clause of the above instruction is the principal ground assigned for reversal. As the authority of Keyes was a disputed question of fact, the importance of the instruction is easily seen. According to the testimony of plaintiffs, Keyes was in no sense a general agent. It does not appear that he had ever acted as the agent of plaintiffs in any transaction with the defendants, or that he had ever been employed to adjust or settle claims with defendants or anyone else. The authority to secure the claims from the defendants would hardly warrant him in releasing one or more of them. (Scully v. Dodge, 40 Kas. 395; Organ Co. v. Lasley, 40 id. 521; Deatherage v.
Eor this error the judgment must be reversed, and the cause remanded for another trial.