Lawson v. Gardner

Court of Appeals of Kentucky

Lawson v. Gardner

6 Ky. Op. 288, 1873 Ky. LEXIS 115

DecidedJanuary 11, 1873

StatusPublished

This text of 6 Ky. Op. 288 (Lawson v. Gardner) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lawson v. Gardner, 6 Ky. Op. 288, 1873 Ky. LEXIS 115 (Ky. Ct. App. 1873).

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Opinion

Opinion by

Judge Hardin:

It is neither alleged nor proved that when selling the goods the plaintiff knew that Stewart was the agent of the defendant; but the account sued on shows the sales were made to Stewart, and presumptively on his credit; but the theory of the plaintiff’s case seems to be that, having sold the goods to Stewart, they had a right, nevertheless, to hold the defendant liable oh discovering that Stewart was in fact his agent, and bought the goods for him.

The evidence does not conduce to show a right of recovery except upon this theory. Wherefore the second instruction which the court gave for the plaintiff, however correct it may have been, if there was evidence that the sales were made and the credit given to the defendant himself on the faith of the known agency of Stewart, was abstract in this case; and it was misleading and erroneous in submitting to the jury the irrelevant question whether at the time the goods were sold the supposed pre-existing agency of Stewart had or not been terminated with public or private notice thereof to the plaintiffs. We need express no opinion on the question as to tKe sufficiency of the evidence to sustain the verdict.

But, solely for the error in giving the second instruction, the judgment is reversed and the cause remanded for a new trial on principles not inconsistent with this opinion.

-, for appellee.

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Opinion by

Judge Hardin:

It is neither alleged nor proved that when selling the goods the plaintiff knew that Stewart was the agent of the defendant; but the account sued on shows the sales were made to Stewart, and presumptively on his credit; but the theory of the plaintiff’s case seems to be that, having sold the goods to Stewart, they had a right, nevertheless, to hold the defendant liable oh discovering that Stewart was in fact his agent, and bought the goods for him.

The evidence does not conduce to show a right of recovery except upon this theory. Wherefore the second instruction which the court gave for the plaintiff, however correct it may have been, if there was evidence that the sales were made and the credit given to the defendant himself on the faith of the known agency of Stewart, was abstract in this case; and it was misleading and erroneous in submitting to the jury the irrelevant question whether at the time the goods were sold the supposed pre-existing agency of Stewart had or not been terminated with public or private notice thereof to the plaintiffs. We need express no opinion on the question as to tKe sufficiency of the evidence to sustain the verdict.

But, solely for the error in giving the second instruction, the judgment is reversed and the cause remanded for a new trial on principles not inconsistent with this opinion.

-, for appellee.

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Bluebook (online)

6 Ky. Op. 288, 1873 Ky. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawson-v-gardner-kyctapp-1873.