53 Kan. 255 | Kan. | 1894
The opinion of the court was delivered by
The contention is that the Western Star Milling Company made an absolute sale of the flour in controversy to Tilden & Baum, and that they had authority to
On the other hand, it is claimed by the milling company that the flour was received and held by Tilden & Baum on commission only, and that there was no absolute sale made thereof. The trial court seems to have found that Tilden & Baum received and held the flour on commission only. The only wriiing between the parties reads as follows:
“ Tilden & Baum, Norton, Kas., in account with the Western Star Milling Company for the following invoice of flour, etc., to be sold for their account, proceeds to be remitted for as sold. A full statement of sales and amount of flour on hand to be rendered in 30 days from date of invoice. Iu case flour is sold before that time, the proceeds to be remitted and statement to be made at once.” [Here follow the dates of the consignments of flour to Tilden & Baum, the amounts, and prices thereof.]
This writing does not establish any sale to Tilden & Baum. It shows that the flour was to be sold for the account of the milling company, and the proceeds to be remitted to such company as soon as the flour was sold.
G. A. York, the traveling agent for the milliug company, testified:
“Ques. Was this flour left with them [Tilden & Baum] on commission, or sold to them? Ans. It was left with them on commission; it was our flour any time we came and called for it; it never went out of our possession.
“Q,. What is the custom of your mill not selling flour in this western country? A. That has been the custom of our mill in new territory where we are not acquainted.
“Q,. It was to be sold for their account; whose account? A. The Western Star Company’s.
“Q,. Proceeds to be remitted and full account of flour on hand to be rendered within 30 days from date of invoice? A. Yes, sir.
*257 “Q,. In case flour sold before that time, proceeds to be remitted and statement to be made at once? A. Yes, sir.”
There was sufficient testimony introduced upon the trial to sustain the finding of the trial court that the flour belonged to the milling company, and that Tilden & Baum had no authority to mortgage it to pay their old debt. The judgment will be affirmed.
