Liggett v. Weed

7 Kan. 273 | Kan. | 1871

The opinion of the court was delivered by

Valentine, J.:

Many of the facts in this case are the same as the facts in the case of Carson v. Kerr, just decided, (ante p. 268.) Both cases have grown out of Carson’s contract to furnish hay to the government. Up to the settlement between Carson, Weed, and Saunders, mentioned in said case, the facts of the two cases are identical. At that settlement, as has been stated in the other case, Weed took the vouchers, and drew bills of exchange, commonly called drafts, on Scott, Kerr & Co., in favor of Carson and Saunders, for the amounts found to be due to them respectively. This action is on the draft drawn in favor of Saunders. It reads as follows

“Leavenworth City,iDec. 1st, 1864.

“ Sixty days after date (acceptance waived) pay to S. Saunders, or order, three thousand nine hundred and sixteen dollars, value received, and charge to account of . T. J. Weed. .

“ To Scott, Kerr & Co.” ' .

This draft was assigned by Saunders? after due,' to John M. Liggett and others. Liggett’s interest in the draft is $500. The draft has not been paid. It was never accepted by Scott, Kerr & Co., except by a conditional acceptance, and that condition has never been fulfilled. No notice of non-acceptance, or of the.conditional acceptance, or of non-payment was given to Weed. Upon these facts is Weed, or Scott, Kerr & Co., liable to J. M. Liggett on the draft ? We think not.

First. Notice of nonpayment should have been given to Weed. No excuse for not giving said notice has been shown. Weed had a right to expect that said draft would be paid at maturity. He had drawn at different times before that time on Scott, Kerr & Co., to the amount of $13,300, and all his drafts had been honored without exception, although as he testifies, he had no special right or special authority to so draw. But when he drew this draft, he had a right to draw, and a right to expect that it would be paid at maturity. The evidence seems to show that the draft was drawn with the consent of John Kerr, a member of the firm of Scott, Kerr & Co.; and Carson testifies that it was drawn by the direction of John Kerr. There is nothing in the evidence that tends to show that Weed did not have authority to draw this draft and to draw all other drafts that he drew on that day. Weed’s testimony certainly does not show that he had no such authority. His testimony referred to by plaintiff’s counsel, refers to drafts previously drawn by him on Scott, Kerr & Co. It is true, that the evidence seems to show that at the time Weed drew this draft he was owing Scott, Kerr & Co. the said sum of $13,-300; and it is also true that the evidence seems to show that at the time he drew this draft, he drew other drafts on Scott, Kerr & Co. amounting in the aggregate, including this draft, to the sum of $9,000, making a total of $22,300 i yet the evidence clearly shows that at the same time he deposited with Scott, Kerr & Co. government vouchers to the amount of $28,896; and all parties seem to have supposed that these vouchers would soon be paid. If it should be admitted or held that "Weed waived notice of non-acceptance, still it must be held that he was entitled to notice of nonpayment, and such notice not having been given, he was released from all liability.

Second, Scott, Kerr & Co. can only be made liable within the terms of their acceptance. They did not agree to pay a dollar on the drafts until the terms of their acceptance should be fully complied with. And as said terms have not yet been complied with, they are not liable. The plaintiff’s claim is $500, and the most that he can claim is, that after Scott, Kerr & Co. shall have collected all of said vouchers except the sum of $500, and appropriated the same to other purposes, that they shall then appropriate the other and last $500 to the payment of his claim as they collect the same.

There are other objections probably fatal to the plaintiff’s claim, which we do not think it is necessary to discuss.

The judgment of the court below is affirmed.

Kingman, C. J., concurring. Brewer, J., not sitting in the case.