The opinion of the court was delivered by
Valentine, J.:
This action was commenced in a justice’s court by Charles Wirth against Cory & Kimball, for the sum of $60. The action was afterward taken on appeal to the district court, where it was again tried by the court without a jury. The court found generally in favor of the plaintiff and against the defendants for the amount claimed, and rendered judgment accordingly. The defendants now bring the case to this court, and ask a reversal of the judgment below. They claim that the findings and judgment of the court below are not sustained by sufficient evidence, and are contrary to law. The only question really before us is, whether said finding is sustained by sufficient evidence. The facts of the case, as shown by the plaintiff’s evidence, are substantially as follows: Wirth was about to sell some furniture to Jerry Donnovan for $60, on' credit. Wirth told Donnovan that he wanted security. Donnovan then said that Cory & Kumball had a note of his for collection against Ed. Glasgow and Thomas Smith for $125, and that Wirth should be paid when the note was collected. They then went into Cory & Kim-ball’s office, where they met Kimball, and told him that Wirth wanted to be secured for $60, and that when said note was collected Wirth was to have $60 of the proceeds thereof. Kimball then drew up the following instrument in writing, signed the same for his firm and for Donnovan, and then delivered the same to Wirth. Said instrument reads as follows:
“Parsons, September 30, 1874.
“ Whereas, the undersigned, Cory & Kimball, have in their possession for collection a note for $125, given by Ed. Glasgow and Thomas Smith, now it is understood and agreed by all the parties, that when said note is collected, $60 out of the proceeds shall be paid to Chas. Wirth.
“(Signed) Cory & KimbalE and Jerry Donnovan.”'
Said note was past due when this instrument was drawn up, signed and delivered. Wirth then let Donnovan have said furniture. Afterward, Donnovan himself collected the money due on said note, but concerning the details of its collection, and as to whether Cory & Kimball had any connection therewith, the evidence is contradictory. That Cory & Kimball delivered, up the note to Donnovan, is admitted; but whether they delivered it up before or after its collection, is not quite clear. It was shown by the evidence on this trial that Kimball admitted and testified on the first trial of the case that he was present when Glasgow and Smith paid the money due on said note to Donnovan. It was shown that Donnovan went to Cory & Kimball’s office for the note; and one witness testified on this trial that he thought, but he would not be positive, that Kimball testified on the other trial, “that he (Kimball) went over with him (Donnovan) from the office, and was present when the money was paid to' Donnovan by Glasgow and Smith.” Another witness introduced by the defendants themselves testified concerning Kim-ball’s said testimony, as follows:
“I inferred from what he said that he went to Glasgow’s saloon on business with Donnovan, and was there when Glasgow paid the money, but did not go for the purpose of making, the collection.”
There was other testimony of the same kind upon this subject. Kimball testified on the present trial that nothing was said at the time he drew up said instrument about security,, or about Donnovan’s and Wirth’s transactions, and that he knew nothing about them. He also testified that he understood that Donnovan had collected the money due on said note before he came to their office for the note, that he did not go with Donnovan to Glasgow & Smith’s saloon, and that he was not present when said note was paid. He also testified that neither he nor his firm ever received anything for drawing up or signing said written instrument; that they never received any of the proceeds of said note; and that Donnovan afterward left the country and went to Texas without even paying them their fees. As to a part of these matters he was corroborated by Cory.
It was also shown by the evidence that «when Donnovan left said note with Cory & Kimball, he left it with the order that suit should be brought on it, unless it was paid at once. And there was no evidence tending to show that Cory & Kimball ever made the slightest effort to collect said note, except to notify Glasgow & Smith prior to the drawing of said written instrument, that they had the note for collection, unless they assisted Donnovan to collect it at the time that it was paid to Donnovan. Cory & Kimball are attorneys and counselors at law.
It will be remembered that the court below found generally in favor of the plaintiff, and against the defendant. It will therefore be presumed that the court below found as follows: Said instrument in writing was drawn up and signed and delivered to Wirth for the purpose of transferring to Wirth an interest in said note of $60, as collateral security for the payment of the debt of that amount then being created by Donnovan by his purchase from Wirth of said furniture, and also for the purpose of making Cory & Kimball the common agents, trustees and attorneys of Wirth and Donnovan for the collection of the money due on said note, and for the paying the same over to Wdrth and Donnovan according to their respective interests therein, to wit: $60 to Wirth, and $65 and interest to Donnovan; that, taking the written instrument, together with the accompanying circumstances, they were sufficient to accomplish the above-mentioned purposes as the parties intended; that Cory & Kimball were to collect said note immediately, but that they failed, and really made no effort to do so, except in connection with Donnovan; that before said note was collected they gave up the note to Donnovan, and then one of them went with him to the payors thereof, and was present when the note was paid to Donnovan, and made no objection thereto nor made any claim for the $60 due to Wirth.
These may not be the true facts of the case, but from the record we must presume that the court so found them, and as there was sufficient evidence, if it had not been contradicted, to prove them, we must decide the case as though they were the true facts of the case. Taking these facts, then, to be true, we do not think that the defendants did their duty toward Wirth. They did not make sufficient effort to collect said note. Perhaps, with the slightest effort on their part, they could have collected it. They should not have given said note to Donnovan, as they did, before it was collected. Perhaps, if they had not returned it to him, he could never have collected it. And when it was paid, as one of their firm was present at the time, they should have claimed $60 for Wirth. They wholly neglected Wirth’s interest, however; and because of such neglect, they became liable for the amount which Wirth was to receive out of the proceeds of said note. Donnovan seems to have been and to be utterly insolvent and pecuniarily worthless. The plaintiffs in error seem to discuss this case as though the agreement between the parties was a mere personal executory agreement on the part of Donnovan alone with Wirth to collect said note, and then to pay $60 of the proceeds thereof to Wirth. Such is not the case, however, under the findings of the court below.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Valentine, J.:
This action was commenced in a justice’s court by Charles Wirth against Cory & Kimball, for the sum of $60. The action was afterward taken on appeal to the district court, where it was again tried by the court without a jury. The court found generally in favor of the plaintiff and against the defendants for the amount claimed, and rendered judgment accordingly. The defendants now bring the case to this court, and ask a reversal of the judgment below. They claim that the findings and judgment of the court below are not sustained by sufficient evidence, and are contrary to law. The only question really before us is, whether said finding is sustained by sufficient evidence. The facts of the case, as shown by the plaintiff’s evidence, are substantially as follows: Wirth was about to sell some furniture to Jerry Donnovan for $60, on' credit. Wirth told Donnovan that he wanted security. Donnovan then said that Cory & Kumball had a note of his for collection against Ed. Glasgow and Thomas Smith for $125, and that Wirth should be paid when the note was collected. They then went into Cory & Kim-ball’s office, where they met Kimball, and told him that Wirth wanted to be secured for $60, and that when said note was collected Wirth was to have $60 of the proceeds thereof. Kimball then drew up the following instrument in writing, signed the same for his firm and for Donnovan, and then delivered the same to Wirth. Said instrument reads as follows:
“Parsons, September 30, 1874.
“ Whereas, the undersigned, Cory & Kimball, have in their possession for collection a note for $125, given by Ed. Glasgow and Thomas Smith, now it is understood and agreed by all the parties, that when said note is collected, $60 out of the proceeds shall be paid to Chas. Wirth.
“(Signed) Cory & KimbalE and Jerry Donnovan.”'
Said note was past due when this instrument was drawn up, signed and delivered. Wirth then let Donnovan have said furniture. Afterward, Donnovan himself collected the money due on said note, but concerning the details of its collection, and as to whether Cory & Kimball had any connection therewith, the evidence is contradictory. That Cory & Kimball delivered, up the note to Donnovan, is admitted; but whether they delivered it up before or after its collection, is not quite clear. It was shown by the evidence on this trial that Kimball admitted and testified on the first trial of the case that he was present when Glasgow and Smith paid the money due on said note to Donnovan. It was shown that Donnovan went to Cory & Kimball’s office for the note; and one witness testified on this trial that he thought, but he would not be positive, that Kimball testified on the other trial, “that he (Kimball) went over with him (Donnovan) from the office, and was present when the money was paid to' Donnovan by Glasgow and Smith.” Another witness introduced by the defendants themselves testified concerning Kim-ball’s said testimony, as follows:
“I inferred from what he said that he went to Glasgow’s saloon on business with Donnovan, and was there when Glasgow paid the money, but did not go for the purpose of making, the collection.”
There was other testimony of the same kind upon this subject. Kimball testified on the present trial that nothing was said at the time he drew up said instrument about security,, or about Donnovan’s and Wirth’s transactions, and that he knew nothing about them. He also testified that he understood that Donnovan had collected the money due on said note before he came to their office for the note, that he did not go with Donnovan to Glasgow & Smith’s saloon, and that he was not present when said note was paid. He also testified that neither he nor his firm ever received anything for drawing up or signing said written instrument; that they never received any of the proceeds of said note; and that Donnovan afterward left the country and went to Texas without even paying them their fees. As to a part of these matters he was corroborated by Cory.
It was also shown by the evidence that «when Donnovan left said note with Cory & Kimball, he left it with the order that suit should be brought on it, unless it was paid at once. And there was no evidence tending to show that Cory & Kimball ever made the slightest effort to collect said note, except to notify Glasgow & Smith prior to the drawing of said written instrument, that they had the note for collection, unless they assisted Donnovan to collect it at the time that it was paid to Donnovan. Cory & Kimball are attorneys and counselors at law.
It will be remembered that the court below found generally in favor of the plaintiff, and against the defendant. It will therefore be presumed that the court below found as follows: Said instrument in writing was drawn up and signed and delivered to Wirth for the purpose of transferring to Wirth an interest in said note of $60, as collateral security for the payment of the debt of that amount then being created by Donnovan by his purchase from Wirth of said furniture, and also for the purpose of making Cory & Kimball the common agents, trustees and attorneys of Wirth and Donnovan for the collection of the money due on said note, and for the paying the same over to Wdrth and Donnovan according to their respective interests therein, to wit: $60 to Wirth, and $65 and interest to Donnovan; that, taking the written instrument, together with the accompanying circumstances, they were sufficient to accomplish the above-mentioned purposes as the parties intended; that Cory & Kimball were to collect said note immediately, but that they failed, and really made no effort to do so, except in connection with Donnovan; that before said note was collected they gave up the note to Donnovan, and then one of them went with him to the payors thereof, and was present when the note was paid to Donnovan, and made no objection thereto nor made any claim for the $60 due to Wirth.
These may not be the true facts of the case, but from the record we must presume that the court so found them, and as there was sufficient evidence, if it had not been contradicted, to prove them, we must decide the case as though they were the true facts of the case. Taking these facts, then, to be true, we do not think that the defendants did their duty toward Wirth. They did not make sufficient effort to collect said note. Perhaps, with the slightest effort on their part, they could have collected it. They should not have given said note to Donnovan, as they did, before it was collected. Perhaps, if they had not returned it to him, he could never have collected it. And when it was paid, as one of their firm was present at the time, they should have claimed $60 for Wirth. They wholly neglected Wirth’s interest, however; and because of such neglect, they became liable for the amount which Wirth was to receive out of the proceeds of said note. Donnovan seems to have been and to be utterly insolvent and pecuniarily worthless. The plaintiffs in error seem to discuss this case as though the agreement between the parties was a mere personal executory agreement on the part of Donnovan alone with Wirth to collect said note, and then to pay $60 of the proceeds thereof to Wirth. Such is not the case, however, under the findings of the court below. The agreement, taking the written instrument and all the accompanying circumstances together, was an assignment and an appropriation of $60 of the fund then in the hands of Glasgow & Smith, for the purpose of paying the debt which was at the same time created from Donnovan to Wirth; and Donnovan was not to collect said $60, but Cory & Kimball alone were to do so; and Donnovan was not the only person who agreed to this arrangement, but Cory & Kimball also agreed to it. And the facts that Wirth parted with his furniture on the strength of this arrangement, and Cory & Kim-ball would have been entitled to their fees for collecting and disbursing said money if they had done the same faithfully, were a sufficient consideration for their agreement. They could have sued on the note if they could not otherwise have collected the money due thereon; and they had the right to use Wirth’s name in any such suit, as well as that of Donnovan. The plaintiffs in error discuss this case upon what they claim to be the facts, and not upon what the court below evidently found the facts to be. We might perhaps agree with the plaintiffs in error, if the facts of the case were as they claim them to be; but as the court below found the facts against them and in favor of the defendant in error, and as there was sufficient evidence to sustain the findings of the court below, although such, evidence was contradicted by other parol evidence, we must decide the case upon the facts as claimed by the defendant in error, and as found by the court below.
The judgment of the court below will be affirmed.
Horton, C. J., concurring. Brewer, J., dissenting.