99 Kan. 699 | Kan. | 1917
The opinion of the court was delivered by
This, was an action to recover rent. Mrs. Stein-man leased her store room to somebody for a year with the privilege to the lessee of extending to five years. After a short time the room was vacant and the rent money unobtainable.
The plaintiff recovered and the defendant appeals, vigorously assailing numerous rulings by the trial court, all of which we have examined. Out of the entire record but two meritorious questions arise — the authority of a certain agent, and the matter of minimizing damages.
O. W. Holmes of Iola saw an advertisement signed John Hall Tailoring Company, calling for a clothes salesman, and thereby got in touch with one C. E. Paden. Paden told Holmes
JOHN HALL Tailor
18 So. Washington St.,
Iola, Kansas.
This was the location of Mrs. Steinman’s store room. Later he received by mail from the defendant a letter on stationery containing an illustration shown by “Exhibit 7.” This gives the address of the general officers as 407-409-411-415-417 South Sangamon street, Chicago. It has an attractive cut of a nine-story building, from the flag staff of which flies a pennant with the device “John Hall.” At the foot of the flagstaff and at right angles are two sign boards each containing the name John Hall facing the two streets on which the building appears to corner. Printed over the cut of this building are the words
“JOHN HALL.
Tailor
(Incorporated)
Branch Stores in all Principal Cities Cable Address ‘Hall Mark’.”
In a short time Grant Billbe succeeded Holmes, who turned the business and supplies back to Paden and took a receipt
Billbe’s successor was L. L. Black, who was told by Paden that the latter had leased the building. Black received a thousand circulars like the one already described, which were printed by Paden. Paden told Black that he was the company’s district manager, anything that he did “the company would go behind”; that the company would pay the rent arid advertising expenses except the little locals which were to be put into the paper at Iola for which Black was. to pay. Black signed a printed application and agreement reciting the appointment as the exclusive representative in Iola, Kan., of John Hall, Inc., of Chicago, 111., containing the agreement that “I will conduct this as an exclusive branch store,” and the further agreement to keep fully insured for the benefit of John Hall, Inc., any and all parts of the necessary outfit furnished him and to return the same in whole or in part as called for within two days after receipt of notice. Black conducted the business for about twenty-four days and, although checked in by Paden, does not appear to have been checked out by him. The deposition of Karl Jackson was taken by the defendant at its office in Chicago. Mr. Jackson testified that the defendant was an Illinois corporation with a president, treasurer, secretary and vic-e president, himself being the credit man and general manager; that his duties were ‘‘the employment of salesmen, the instructions of them and their duties, the overseeing of credits, and the general routine of office work.”-
He testified that John Hall had never operated stores in any cities whatever in the name of John Hall Tailoring Company. That the by-laws of the corporation provide that all written instruments shall be signed in the name of the company by the president and attested by the secretary, attaching the corporate seal; that Holmes operated a store in Iola under the
Without going further into the matter, quoting from more of the voluminous evidence, it is enough to say that from the record we are satisfied with the trial court’s view of Paden’s agency and find no error in respect to the admission of evidence in relation thereto.
The defendant requested the court to instruct that in case of breach of contract by one party it becomes the duty of the other to use reasonable diligence to minimize the damages resulting from such breach; also that unless the jury should find that the plaintiff, when she learned of the breach of the lease, used ordinary diligence and efforts to rent the building they should not allow any damages resulting from such lack of ordinary diligence. These instructions were refused. The jury were charged that if they should find for the plaintiff upon her first cause of action she would be entitled to recover ' rent at the rate of $35 a month for one year from May 1, 1914, less amount paid to her upon the lease, and also less any amount of rent she may have received from the premises for the months of March and April, 1915. They found for the plaintiff in the sum of $245 and costs. The plaintiff testified that she received only two months’ rent from the defendant, and two months’ rent from Mr, Parrott, who moved in March 1, 1915.
In view of the terms of the lease, the allegations of the second amended petition, the amount collected, the sum sued for and the amount recovered, the defendant ■ can not in the absence of any allegation or evidence touching the question justly complain of the court’s refusal to-give the requested instructions.
Various other matters are pressed, but are not of sufficient importance to merit any further extension of this opinion.
The conclusion reached by the triers of fact was approved by the court below and supported by the evidence.
The judgment is affirmed.