Weide v. Carlisle Commission Co.

214 P. 93, 113 Kan. 239, 1923 Kan. LEXIS 367

• Court: Supreme Court of Kansas
• Decided: April 7, 1923
• Docket: No. 23,949
• Status: Published

Opinion

The opinion of the court was delivered by

Harvey, J.:

This is an action to recover for services under a written contract of employment to purchase hay. The trial was to the court. The plaintiffs prevailed and the defendant appealed and contends that the judgment is contrary to the evidence and the law.

The defendant, a commission firm dealing in hay at Kansas City, in June, 1918, employed plaintiffs, residing in Woodson county, to purchase hay to be shipped defendant by a written contract of employment which provided that all prices and terms were to be dictated by defendant, the plaintiffs to make the purchases, perform certain prescribed duties about inspecting, grading, getting cars, loading, etc., and to receive for their services fifty cents per ton for the hay so purchased. The payments were to be made as the hay was shipped. Under this employment plaintiffs, during the summer and fall of 1918, bought and shipped a large quantity of hay for defendant, which it received and paid for. The business apparently was being conducted satisfactorily to both parties, who conferred with each other by letter or telephone almost daily. Among the purchases made was a purchase made in August of 2,000 tons from Cantrell. This purchase was reported to defendant and confirmed by him. In November, after about 1,500 tons of the Cantrell hay had been shipped, defendant represented to plaintiffs that this hay was not making him any money and asked plaintiffs to waive their fifty cents per ton on the balance of the Cantrell hay or to permit the postponement of such payment. This was the principal question in the case, that is, was the payment entirely waived, or was the payment of it by the agreement of the parties simply postponed? There are some other questions in the case as to whether or not the plaintiffs had performed all of the duties in respect to this hay, such as grading, testing, procuring cars,.looking after loading, etc., which by their contract, they were to do in order to be entitled to the fifty cents per ton. The judgment of the trial court in favor of the plaintiffs, in effect found that the payment had not been waived, but that its payment was simply postponed to a reasonable time and that a reasonable time had elapsed before the suit was brought, and that plaintiffs had performed the services under the contract to be entitled to the fifty cents per ton. There is ample evidence in the record to sustain the judgment construed as including all these findings. It would serve no good purpose to analyze the evidence in detail. The judgment of the court below is affirmed.