51 Kan. 442 | Kan. | 1893
The opinion of the court was delivered by
This action was brought by Bailey against Mauuen to recover the value of certain goods which had been levied on by Mannen, as sheriff, and which Bailey claimed as mortgagee of the firm of C. A. Dunakin & Co., which was a partnership composed of C. A. Dunakin and A. N. Dunakin. The business of the firm was carried on at Fredonia, under the personal supervision of A. N. Dunakin, under an agreement, by the terms of which C. A. Dunakin was to furnish the capital, and A. N. Dunakin was to have what is denominated a working interest — to bear half the expenses of conducting it and to receive half the profits. The chattel mortgage under which the plaintiff claims was given to secure a note for $3,000, executed by C. A. Dunakin alone. The evidence shows that C. A. Dunakin had borrowed largely from the plaintiff, and been indebted to him for many years; that, when the business was first started at Fredonia many goods were supplied by C. A. Dunakin, who also had a store at Chanute. Remittances from sales made at Fredonia were made to C. A. Dunakin, at Chanute, from time to time. The evidence fails to show, definitely, the state of accounts between
The principal question in the case arises on the instructions. The court, among other things, instructed the jury as follows:.
“You are instructed in the first place that the mortgage of Bailey, which has been read in evidence, is regular upon its-face, and that the firm of Dunakin & Co. had the legal right to execute this mortgage to secure the payment of the indebtedness mentioned therein.
“The extent of the interest of the plaintiff in these goods is the amount of the mortgage debt which is yet unpaid, and evidence has been introduced which will indicate to you the amount, but it has been agreed among counsel that, in the event you should find for the plaintiff, that in no event shall the verdict of the jury be for a greater sum than $820.55, which the parties have agreed shall be taken as the value of the goods that the sheriff took, and I take it for granted that the balance of the debt of the plaintiff exceeds that sum.”
The first claim of the plaintiff in error to which our attention is called is, that an insolvent partnership cannot legally appropriate the firm property by mortgage to the payment of the antecedent debt of one of the members. In support of
“ Ques. Do you know how much money was received from the sale of goods in Fredonia? Ans. No, I can’t state exactly.
“Q. Do you know what was the value of the stock of goods on which you held the mortgage in Fredonia? A. No, I do not.
“Q,. You do not know, do you, whether you got all the money that was received from those goods or not? A. I do, unless I was swindled by somebody.
“Q,. All you know about it is what you received? A. That is all I know.
“Q. And what you credited upon that note? A. That is all I have actual knowledge of individually, alone. I know what my instructions were.
“Q,. Do, you know what amount of expenses are charged up in the collecting of $2,000? A. I cannot tell; it is in the bank book of the Wilson County Bank. I can tell from the memorandum.
“Q,. Then in placing the credit upon the note, you simply credited the note for such amount as came to your hands? A. Yes, sir; the two credits are all.
“Q,. . The $2,000 and $81.25? A. That is the total amount I got.
“Q,. What other moneys were received you don’t know? A. No, I cannot tell from memory; it is a matter of record in the bank book.”
I fail to find anything prejudicial in the statement made by the trial judge to the jury, that “ I take it for granted that the balance of the debt of the plaintiff exceeds that sum.” The main contention in the trial was the honesty and good faith of the parties in giving and taking
The judgment will be affirmed upon the opinion of the majority of the court.