18 Kan. 543 | Kan. | 1877
The opinion of the court, was delivered by
The plaintiff Todd and the defendant Allen were formerly partners in the drug business, under the name of Allen & Todd. On 17th June 1874 they entered into a written executory coutract to dissolve their copartnership, and to sell their partnership business, including all their partnership property and good-.will, to the partner who would pay the most therefor. Afterward they made
It is well settled, that the terms of a written contract cannot be varied by any previously executed contract, written or parol, nor by any contemporaneous parol contract. It is equally well settled, that the terms of a written contract may be varied, modified, waived, annulled, or wholly set aside, by any subsequently executed contract, whether such subsequently executed contract be in writing or in parol. Now was said sale to Allen made subsequently to the execution of said written contract, or was it made contemporaneously therewith? Unquestionably the sale was made subsequently, and at least one day thereafter. The contract was executed June 17th. That is, the instrument constituting the contract was executed on that day, and became a completed contract on that day. But the things stipulated to be performed under such contract were hot however executed on that day, and some of them probably never were executed in exact accordance with the terms of such contract. The stipulations with regard to said sale were certainly not executed at the time of the execution of the instrument, but were certainly all merely executory. The contract did not create a sale, or constitute a sale. It merely provided for a sale to be made at some indefinite time in the future. And who would be the purchaser, or who the seller, or what the price would be, no one could tell from the contract. Each partner was to bid, and each was to bid alternately, until his bid should be accepted by the other partner. The sale actually transpired on the 18th, or 19th, of June, and Allen was the purchaser; but by the terms of the contract it might have transpired at any other time after the contract was made, and Todd might have been the purchaser. And according to the evidence the sale was not conducted strictly in accordance with the contract. Allen was the only bidder, and said accounts were not included in the sale. We think the court below erred in excluding evidence tending to show that said accounts were not
After the plaintiff rested his case, the defendant demurred to the evidence, and the court below sustained the demurrer, and refused to submit the case to the jury. Now upon the defendant’s theory of the case, this was right; but upon the plaintiff’s theory of the case, it was wrong. If the plaintiff had no right to show a sale different from the one contemplated in said written contract, then there was no sufficient evidence to go to the jury. But if the plaintiff had a right to show that the sale was such as he claimed that it was, and that said accounts were excluded from the sale, and that he was to have one-half of what Allen collected thereon, then there was evidence sufficient to go to the jury. It is immay terial however whether there was sufficient evidence or not to go to the jury; for, because of the jiaid error in excluding evidence, the judgment of the court below must be reversed.