39 Kan. 148 | Kan. | 1888
Opinion by
The defendants in ez’ror, as plaintiffs, brought this action to recover the amount of a bill of groceries, claimed by plaintiffs to have been bought of them by defendants through their agent, one Littonsky. The defense interposed was that Littonsky was not their agent, but was the principal from whom defendants purchased, and to whom they made full payment at the maturity of the debt. This action was tried by the court without a jury, at the February term, 1886. The court made special findings of fact and conclusions of law, and rendered judgment for the amount of plaintiffs’ claim, $102.48..
In 1883, the defendants were keeping a small store at Comet, Brown county, a little village off the line of the railroads. Littonsky had often sold them dry goods and notions out of a cart, in which he carried his goods. In December, 1883, John D. Crist, one of the defendants, znet Littonsky in the cars as he was going to Atchison, and told him that he was going there to purchase goods; Littonsky asked and obtained per
The defendants cite Lumley v. Corbett, 18 Cal. 494, as authority in their favor decisive of this case. The facts in that case were: That one Broadhurst was, and had been for some time, a wholesale merchant in San Francisco, having a stock in his storehouse from whom Corbett had been in the habit of buying goods of the same kind as those named in the action brought, and paying him therefor. He bought of Broadhurst five hogsheads of ale, and as he did not have it in store he obtained an order from Lumley and gave it to Corbett. The ale delivered was Lumley’s, but' the defendant believed it to have been Broadhurst’s, and paid him for it. That authority is not entirely applicable in this case. It differs in this, and we believe the difference a material one: Broadhurst was a merchant who usually carried a large stock of the same kind as those sold; Littonsky did not own a store, never had dealt in the kind of goods ordered, did not pretend to own them, but said he could buy them elsewhere; Broadhurst had repeatedly sold and received payment for goods of like character; Littonsky had never even pretended to traffic in similar goods before;’Corbett himself procured the goods upon the order “to deliver” them; these plaintiffs sent the goods upon the order of Littonsky given personally to them; the plaintiffs in this action sent an invoice to defendants which showed that defendants had bought the goods of plaintiffs; these defendants paid Littonsky for goods he did not carry; Corbett paid Broadhurst, as he had often done before. We think this authority should not control the decision of the case.
The defendants asked that the findings be made more definite and certain, and that some of them, designating the ones, should be set aside for the reason that they were not supported by the evidence. They were voluminous, and sufficiently comprehensive, definite and certain to support the judgment. Probably one of the findings was more favorable to the plaintiffs than the evidence would justify, but under the evidence brought here and the other findings, the error was immaterial.
It is therefore recommended that the judgment be affirmed. By the Court: It is so ordered.