102 Kan. 259 | Kan. | 1918
The opinion of the court was delivered by
The Studebaker Corporation appeals from a judgment against it for costs in an action on a promissory note executed by the appellee, W. J. Bell, as principal, and W. Kurt and Gary Wilson as sureties. The note was given as part payment for an automobile purchased by Bell from the appellant. Bell answered that he had paid the note to Kurt and Wilson, agents of appellant with authority to collect the note. The case was tried by the court and findings made, in substance, that the firm of Kurt and Wilson was appellant’s agent and authorized to receive payment of the note.
The sole contention of appellant is that there was no evidence to support these findings, and that judgment should have been rendered against Bell for the amount of the note and interest.
The appellant is engaged in the manufacture and sale of automobiles, its principal place of business being at South Bend, Ind., and it maintains a branch office at Kansas City, Mo. At the time the note was executed Kurt and Wilson were partners in business at Emporia, and were selling the appel
The appellee, Bell, testified that Kurt and Wilson made an arrangement by which he sold automobiles for them to such-customers as he could find in his locality. His testimony was, “If I sold a car I came down and got it of Kurt and Wilson and sold it to my customer, and when the customer paid me the money was mine”; that this was the extent of his connection with Kurt and Wilson. He further testified that the note sued on is the only one he ever signed; that he was unable to get this note from Kurt and Wilson when he paid them the money, but kept insisting upon their getting it for him; he finally wrote to the Studebaker company and asked them if they had it and learned from them that they had.. It was the only car he ever bought without paying cash for it.
Kurt, who was a witness for the appellee, testified that the way in which the firm of Kurt and Wilson carried on business with the appellant was, that if they wanted a car they had to
“The representative made out these notes, the Bell note, and we signed it, and he said, ‘Bell is dealing under you folks. He is your subdealer. All his transactions is done through you,’ for him being our subdealer, he would have to do his transactions through us. That is the way this collection' was made. When Bell paid us he was doing his business through us instead of through the company. We made that collection.”.
On cross-examination he testified:
“Q. Now, then, you say that Wollington told you to collect this money? A. Well, he told us that all of Bell’s transactions was through us.
“Q. Is that what he said? A. That’s what he said.”
He was recalled by the appellee and asked the following question:
“I did understand you to say that the man that made out the note was the one that told you that you was to collect that from Bell and they looked to you for it. A. That’s right.”
He was again cross-examined, and the substance of his testimony is given in the following questions and answers:
“Q. Now, I understand now, Mr. Kurt, that during that conversation there was not anything said about you collecting this particular note from-Bell? A. Well, now, I can’t say just exactly on that but I think it included that.
“Q. That is simply your opinion that it did include that but do you remember anything said'about you having to collect this note? A. No, I would not say that I remember of anything said definite about that note. I said at the time he made the notes out that he mentioned — or spoke to him [me] about the dealings with Bell, ,and he said all the transactions as between you and Bell; this Bell, we don’t know each other.”
The court made the following finding of fact:
“The court further finds from the evidence that the said defendant, W. J. Bell, at or about the time of the maturity of said note paid the same by paying to the said Gary Wilson and William Kurt, who were at said time a partnership and as such partnership were the local agents of the said plaintiff, through whom ,the said W. J. Bell had theretofore transacted his business with said plaintiff.”
Upon this finding the court based the further finding that Kurt and Wilson were the agents of appellant, and held as a matter of law that the payment to them satisfied the note.
In our opinion it is very doubtful if there is any evidence to sustain the finding that Kurt and Wilson were agents of appellant at all, or that they had any authority other than to deal in automobiles in the manner specified in the contract. How
The provision in the contract that the dealer was in no way
The note was payable at Kansas City to the order of the Studebaker corporation. Bell was the" principal and Kurt and Wilson were sureties; the note was not in their possession, and Bell knew these facts. Where payment is relied on as a defense to an action on a promissory note, and it is sought to show the agency of a comaker to collect for the principal, especially where the note is not in the hands of the other maker, the evi