53 Kan. 219 | Kan. | 1894
The opinion of the court was delivered by
The only substantial controversy in this case is as to the legal effect of the transaction by which the defendants placed the proceeds of the hogs sold by them to the credit of W. H. Morris in the McCune bank and the subsequent acceptance by Morris of the application of the proceeds to the payment of his individual debt to the bank. While counsel for the defendants in his brief and on the argument challenges the good faith of the transaction between Morris and the plaintiff, the court specifically finds in favor of the plaintiff on that issue, and there is no controversy as to the fact that the mortgage was duly recorded soon after its execution. The court seems to have based its decision on the existence of a usage at the Kansas City stock yards of placing money in a Kansas City bank to the credit of a bank located near the shipper’s residence, for his use, and to have held that, having so placed the funds, their duty was at an end, and that the McCune bank might lawfully apply the money to the payment of any indebtedness due from Morris to it.
“ I never was more astonished than, after examining, to find that your proceeds had not been sent off on the 10th. A*227 party was in that day who told our clerk to hold the proceeds until he returned from a visit to Illinois, and I told him to mail you your proceeds in several checks, but as our clerk has been with us only a short time, and is not yet familiar with our customers, he got confused on the two, and, by mistake, held yours.”
This letter clearly indicates that they intended to remit by check, and not in the manner in which this remittance was finally attempted, and, taken together with the former transaction between these parties, completely negatives the idea of any usage of such character that the parties to this case will be presumed to have dealt in reference to it. This letter from the defendants clearly shows that they did not contract with reference to such a usage, but that the defendants intended at the time the proceeds were first received to remit in an entirely different way. It is extremely doubtful whether the evidence offered at the trial establishes any such uniform custom as is claimed, irrespective of the special dealings between Morris and the defendants. It is clear, from all the evidence, that there are at least many exceptions in practice. For cases illustrative of the rule as to the essentials of a special usage, see Wall v. Bailey, 49 N. Y. 467; Walsh v. Transportation Co., 52 Mo. 434; Scudder v. Bradley, 106 Mass. 422; Wallace v. Morgan, 23 Ind. 399; Bailey v. Bensley, 87 Ill. 556; Smythe v. Parsons, 37 Kas. 79. It is generally held that the custom must be uniform and reasonable. It is also generally held that a party who relies on a special usage must plead it. (Lindley v. National Bank, 41 N. W. Rep. 381; Governor v. Withers, 50 Am. Dec. 95; Wallace v. Morgan, supra.) This was not done in this case. We base our decision, however, on the fact that it affirmatively appears that the parties to this transaction did not deal with reference to any such alleged usage.
We are asked on behalf of the plaintiff in error to direct judgment in his favor for the amount claimed. The findings, however, of the trial court are not sufficient to warrant us in doing so. The judgment is reversed and a new trial ordered.