Fox v. Campbell

49 Kan. 331

• Court: Supreme Court of Kansas
• Decided: July 15, 1892
• Status: Published

Opinion

Opinion by

Green, C.:

W. J. Wilson,. T. L. Fox and J. B. Fox were engaged in the' mercantile business in the city of Wichita, under the firm-name of Wilson & Fox, in April, 1887, when the firm ordered a bill of goods of Mason, Campbell & Co., the defendants in error ; some for immediate delivery and some to be shipped at a future date. It seems that the goods ordered for the spring delivery were all paid for. The goods ordered for the fall delivery, amounting to $822, were received by the firm of W. J. Wilson & Co., the successors of Wilson & Fox, about the 28th day of September, 1887, but were not paid for. On the 1st day of September, 1887, the firm of Wilson & Fox agreed upon a dissolution, and on the 15th of the same month notified Mason, Campbell & Co. The formal dissolution of the firm of Wilson & Fox took place on the 27th day of September. When the firm of W. J. Wilson & Co. received the goods, they addressed a letter to Mason, Campbell & Co., in which they stated that they were under the impression that the order for the goods in question had been countermanded when the firm of Wilson & Fox dissolved, and asked the privilege of returning the goods, or that a new date be given them to enable them to keep the goods. Under date of October 25, 1887, Mason, Campbell & Co. wrote W. J. Wilson & Co., requesting them to keep the goods, and authorized them to alter the dating of the bill, so that it would read January 1, 1888, making the bill fall due February 1, and stated that they had made a corresponding change on their ledger. On November 18, 1887, the firm of W. J. Wilson & Co. returned a portion of the bill of goods, some to be exchanged for other goods and the balance to be credited on the account. The goods sent for exchange were accepted, but the others, sent to be credited, were declined. The transactions between the firms of W. J. Wilson & Co. and Mason, Campbell & Co. were without the knowledge and consent of T. L. and J. B. Fox.

Mason, Campbell & Co. brought suit against W. J. Wilson, T. L. and J. B. Fox, partners as Wilson & Fox, to recover the amount due on the account. After the introduction of the evidence in chief by the plaintiffs and defendants, the plaintiffs then offered evidence in rebuttal, and then filed a demurrer to the evidence of the defendants, which the court sustained, over the objections of the defendants, and directed the jury to return a verdict for the amount claimed by the plaintiffs against all the defendants. The plaintiffs in error bring the case here, and say that the court erred in assessing the damages and instructing the jury to return a verdict for the plaintiffs. It is urged by the plaintiffs that there was sufficient evidence to have warranted the court in submitting the case to the jury, and that it was error not to do so. It is claimed that the correspondence between W. J. Wilson & Co. and Mason, Campbell & Co. indicated that the goods had been resold to the former. They were asked to keep the entire order, given an extension upon the bill, and permitted to exchange some goods.

We have carefully considered the testimony, and without expressing any opinion as to what is established by the evidence, we cannot say—

“That admitting every fact that is proved which is favorable to the defendants below, and admitting every fact that the jury might fairly and legally infer from the evidence favorable to the defendants, still they have utterly failed to make out some one or more of the material facts of their defense'.” (Brown v. Railroad Co., 31 Kas. 1.)

If the evidence fairly tended to establish the defense pleade d it was clearly the duty of the trial court to have submitted all of the issuable facts to the jury, under proper instructions.

It is recommended that the judgment be reversed, and the cause remanded for a new trial.

By the Court: It is so ordered.

All the Justices concurring.