193 Ky. 704 | Ky. Ct. App. | 1922
Opinion of the Court by
Affirming.
By this action the plaintiff, now appellee, recovered the sum of $2,275.00, alleged to he due upon a contract of defendants, the Eoyal Adjustment Company, a corporation, B. W: Willett, and the individual members of the firms of Strouse & Bros. and the Hays-Levi Company, all of whom are non-residents.
All of the defendants appeared and denied the execution of the alleged contract, and the defendant, Royal Adjustment Company, in addition averred that a similar contract was made by it with plaintiff, but only upon the condition that a composition with all the creditors could be effected upon a basis of twenty-five cents on the dollar; that this condition rendered the contract illegal and voibecause plaintiff and two other creditors by the terms of the agreement sued upon were to receive sixty-six and two-thirds per cent of their claims, and that, besides, the condition was never performed. The affirmative pleas of this defendant were traversed of record.
The plaintiff proved by four witnesses that Willett, admittedly acting for himself and the Eoyal Adjustment Company, of which he was the president, unconditionally purchased plaintiff’s claim against the Johnson-Striegel Company at the time and upon the terms set out in the petition.
This was denied by Willett, who testified the offer as made and accepted was conditioned upon a composition with all of the creditors, which all the parties agree was never effected.
The issue between the plaintiff and these two defendants was therefore clear and simple' and was just as
It is also insisted for all of the defendants that the court erred in refusing to exclude the- statement of D. A. Sachs, Jr., that Willett told him he was the agent for all of the defendants. If such a statement had been admitted over objections it clearly would have been error, but we do not find that any such, statement was so admitted. What Sachs did state, and it was clearly proven that'he was representing all of the defendants as attorney in the bankruptcy proceedings against the JohnsonStriegel Company, was that Willett represented himself as Levi’s representative, “and he represented both claims, Hays-Levi and Strouse & Bros, and the Royal Adjustment Company.” And not only was there no objection to this positive evidence by one presumably in a position to know of Willett’s agency for all the defendants, but it was brought out by counsel for defendants in the cross-examination of Sachs, who was a witness for plaintiff. Hence there is no merit in this contention, or in the further 'contention that there was no evidence whatever connecting either Hays-Levi Company or Strouse & Bros, with the transaction.
In addition to this positive evidence of Willett’s authority to act for all of the defendants and that he was so acting, it is -shown by the evidence of defendant’s witnesses, Willett and Sidney Levi, that he came to Louisville and interested himself in this matter at the instance of Hays-Levi Company and Strouse & Bros., and. that these firms jointly paid his expenses on his first two trips. As further proof that he and his company were acting under authority for the other two defendants
Defendants contend most earnestly that the court erred in refusing to exclude these contracts and this letter upon the ground that evidence of other independent, though similar, transactions is not competent to prove a particular transaction. This principle of law is sound hut inapplicable here, because the several transactions, including the purchase of plaintiff’s claim, were shown to be inseparably connected and but different parts of one entire transaction conducted by Willett at the instance of and for the benefit of his otherwise undisclosed or but scantily disclosed principals, Hays-Levi Company and Strouse & Bros.
Perceiving no error prejudicial to the substantial rights of any of the defendants the judgment is affirmed as to all of them.