39 Kan. 665 | Kan. | 1888
This was an action brought by the defendants in error, plaintiffs below, for the purchase-price of ten thousand cigars sold and delivered by their agent to the defendants. The record shows that these cigars had been sold by one O’Connell, a traveling salesman of plaintiffs, to some firm in the city of Atchison which had refused to receive them, and O’Connell, under the direction of plaintiffs, sold the goods a second time, and plaintiffs in error, defendants below, became the purchasers. As a defense to this action, they claim that they purchased the goods from O’Connell, and paid him for the same, without any knowledge that the goods belonged to plaintiffs. Three errors are assigned, the first of which is, that the court permitted the plaintiffs below- to cross-examine the witness Smith as to the purchase of goods by said witness from Morrill & Co., in 1883. The evidence shows that prior to the formation of the partnership of Smith & Hooper, Smith had been engaged in the dry-goods business, and at the time of this transaction Smith was the business agent of Smith & Hooper, Mrs. Mary E. Smith being the wife of this witness. Plaintiffs had offered evidence tending to show that prior to the payment claimed by the defendants to O’Connell for the goods in question, one Wilson was sent from Chicago as the agent of plaintiffs, to Atchison, to investigate this transaction, and while there had a conversation with Smith and the firm of Smith & Hooper, and directed them to pay no money to O’Connell. Smith in his evidence seems to deny knowledge of Morrill & Co., and also of Wilson’s authority from them. This question as to the purchase of goods by Smith while, engaged in business was competent to show that he had had dealings with the plaintiffs, and that a bill of goods was purchased by him from Morrill & Co. through the witness Wilson, and that by that transaction he had knowledge, not only of Morrill & Co., but also that Wilson had been or was agent of plaintiffs. This we think was competent testimony, and proper on cross-examination.
The second error alleged is, the admission of the evidence of witness Wilson as to a conversation between witness and
The third error alleged is, that the court permitted in evidence the account of B. Smith against O’Connell, an account that had been made by O’Connell while Smith was engaged in the dry-goods business, sometime in the year 1883. Smith, failing in business, had made an assignment to Symns & Co., and his books were then held by them, but at the time of the claim of payment the books had been left by Symns & Co. at the store of the defendants. The defendants and O’Connell pretended to deny that such a claim was deducted from the payment of the $180. We think that the evidence was competent to show that O’Connell was indebted on this Smith account, and to show that it was paid and retained out of the money due Morrill & Co., because if any sum was so retained, notwithstanding the balance of the money may have been duly received by O’Connell, there would still be due the amount so retained. It is a well-established doctrine, that an agent cannot pay his individual debts out of claims due his principal. If Smith & Hooper retained the $31.45 that O’Connell was owing Smith, that was no payment to Morrill & Co. For this reason we think the evidence was competent, and that the judgment of the court below must be affirmed.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
