페이지 이미지
PDF
ePub

rental falls due upon any of the leases hereins parties must now be measured by the agreement mentioned as provided in said original lease of August 18, 1904." (except as herein before specified and agreed),

If the finding necessarily made by the court if said first party elect not to pay said cash rentals, the said third party, after ratifying this to justify granting a temporary injunction contract (and the said second party until said was correct, there was no error in granting ratification), may pay the same, and thereupon the injunction. The abstracts do not disclose it shall be the duty of said first party to assign that such a finding was not correct. such lease or leases to the said second or third party as the case may be, upon tendering said [2] The Garnett Light & Fuel Company first party the legal notary fees for so doing, contends that the lease from Tippen and wife first party, giving thirty days' notice to third party of their intention to abandon said lease expired on December 22, 1905. This contenor leases.

tion is based on the following provisions con"(14) It is agreed that the party owning the tained in the lease: oil right and the party owning the gas right

"To have and to hold the same unto the shall operate their separate properties so as to lessee, his heirs and assigns, for the term and interfere as little as practical with the inter period of two years from the date hereof, and est of each other.

as much longer (not exceeding fifty [50] years) "(15) In case a gas well ceases producing and as coal, oil, water, mineral water, gas, or other produces oil, it is to become the property of mineral are found in paying quantities thereon. first parties on payment of the actual value of

"In case no well shall be found on the abovethe casing and equipment.

described premises within two years from the "(16) It is agreed that if the party owning date hereof, this lease shall become null and the gas right shall encounter oil in paying quan: void and without any effect whatever, unless tities in any of its wells to be drilled or that the lessees shall pay for further delay at the may be hereafter drilled on the above leases, rate of one ($1.00) dollar an acre per year at the party owning the oil rights agrees to take or before the end of each year thereafter, until such well and pay the actual cost of the same a well shall be found on said premises." within thirty days from completion, and if the parties owning the oil right while drilling on By these provisions, the lease was to exany of the above leases shall encounter gas in tend 50 years, if gas or oil was found in pay. paying quantities in any of its said wells to be drilled, or that may be hereafter drilled on said ing quantities, or if the annual rental of $1 an leases, the party owning the gas rights agrees cre was paid before the end of each year to take such well and pay the actual cost of the until a well should be found on the premises. same within thirty days from completion, and if the parties cannot agree as to the actual cost The rentals have been paid, and the lease has of such well, or as to whether such wells are not expired. On October 11, 1917, the Garit is to be left to three disinterested persons, lease on the same property from the then producing gas or oil in paying quantities, then nett Light & Fuel Company obtained another each choosing one, and these two so chosen choosing the third, whose determination as to owners, which lease contained the same prothe actual cost of the well and as to whether it visions as the first one. The second lease did is producing gas or oil in paying quantities is not have any effect on, nor change, any right to ba final.

"(17). In case a well produces both oil and gas of the plaintiff under the first lease and unin paying quantities, the party drilling the well der the contract. is to have his choice of surrendering or retain The judgment is affirmed. All the Justices ing the same."

concurring. The Garnett Light & Fuel Company, or its predecessor, paid the rentals under the lease.

(103 Kan. 135) There was no direct evidence that the plain KRAMER V. WALTERS. (No. 21550.) tiff abandoned or released his rights under

(Supreme Court of Kansas. May 11, 1918.) the lease and contract, although there is set out in the abstracts correspondence which

(Syllabus by the Court.) tends to show that each of the parties to this 1. PRINCIPAL AND AGENT 123(1) – Comaction desired to place on the other the obli

MISSION CONTRACT-AUTHORITY OF AGENTgations arising out of the oil rights. The ab EVIDENCE. stracts also indicate that there was some oral the plaintiff's agent had authority to bind the

There was evidence sufficient to show that evidence introduced on the hearing of the ap- plaintiff by contracting with the defendant for plication for a temporary injunction, and the sale of silos by the defendant on commission. that there were statements and admissions 2. PRINCIPAL AND AGENT Omw 193—CONTRACT made by counsel, none of which has been ab WITH AGENT—COMMISSION-COUNTERCLAIM. stracted. Special findings of fact were not

It was not error to submit to the jury the

defendant's counterclaim based on those commade by the court; but in order to justify a missions. temporary injunction, the court must have

3. PRINCIPAL AND AGENT found and held that the plaintiff's oil rights

-101(1) - Con

TRACT OF AGENT-MEETING OF MINDS. under the lease and the contract were in full A binding contract is made by the meeting force and effect. This conclusion is sustained of the minds of an authorized agent and of anby a statement of the court subsequently made for the agent's principal.

other person with whom the contract is being made in another proceeding in this action. That statement was as follows:

4. CONTRACTS 56–CONSIDERATION-MUTU-.

AL PROMISES. "Upon further consideration of the original A binding contract can be made by 'mutual lease, I am still of the opinion that it is in promises; each promise furnishes a sufficient full force and effect, and that the rights of the consideration for the other.

[ocr errors]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from District Court, Butler County. I the defendant by the plaintiff to warrant the

Action by A. A. Kramer against B. Wal- submission of that issue to the jury. This ters, with counterclaim by defendant. Judg-contention is not good. There was evidence ment for defendant on the counterclaim, and which tended to show that the plaintiff, plaintiff appeals. Affirmed.

through Viers, the plaintiff's agent, employed E. D. Stratford, of El Dorado, and Hut- the defendant to sell silos for the plaintiff ton, Davis, Nourse & Bell, of Kansas City, in Butler county. That evidence was the Mo., for appellant. H. W. Schumacher and defendant's letter of inquiry, the plaintiff's George J. Benson, both of El Dorado, for reply thereto, the visit of J. P. Viers in acappellee.

cordance with that reply, the contract made

by Viers with the defendant concerning comMARSHALL, J. The plaintiff commenced missions, and the letters written by the this action to recover on a promissory note. plaintiff to the defendant requesting him to The defendant set up a counterclaim and see certain purchasers of silos and get those recovered judgment for $76. The plaintifr purchasers "lined up.” appeals.

[2] 2. Another matter argued by the plainIn 1913, the defendant purchased a silo tiff is that it was error to submit the de from the plaintiff, and, in part payment fendant's counterclaim to the jury, for the thereof, gave the note sued on in this action. reason that the defendant knew that Viers On January 31, 1914, the defendant wrote had no authority to employ him as agent for the plaintiff that there were men looking at the plaintiff. The answer to this matter is the silo sold to the defendant, and said: that there was no evidence which tended to

“I am writing you to know what terms you show that the defendant had any knowledge could make and what commission you could of any limitation on the authority of Viers pay, if I could draw up the contracts and sell at the time the contract was made. 8 or 10 of these silos. I would try to get these contracts as early as possible, so please

In May or June, 1915, after the defendant give me the best terms you can make and state had performed the labor for which he claimwhether or not you would let me give them the ed compensation, the plaintiff informed the price, and terms of payment. I would want all defendant that Viers had no authority to this understood; also state whether or not you will send me catalogues and literature to dis- make the contract; but, until the letters tribute among prospective buyers."

were received in which this information was On February 6, 1914, the plaintiff replied given, the defendant did not have any to this letter as follows:

knowledge that any limitation had been “Replying to your letter, will say that we placed on the authority of Viers as agent for have requested our Mr. J.'P. Viers, who has the plaintiff. charge of the sale of Columbian silos in the southern and central portions of Kansas, and tions contained in the contracts to be taken

The plaintiff also insists that the limitais at present at Rosalia, Kansas, to call on you at his earliest convenience with a view of by the defendant and to be signed by the quoting you commissions for selling Columbian purchasers of silos constituted notice of the silos in your immediate neighborhood.

limitation on the authority of Viers. This "If you do not hear from Mr. Viers within a few days, please communicate with us again. conclusion cannot be properly drawn from We are sending you our new catalogue under anything contained in those contracts. The separate cover.'

limitations therein contained were to be Viers visited the defendant in February observed by the defendant in selling silos. and contracted with him for the sale of silos Those limitations did not concern the auin Butler county. By that contract the de- thority of Viers in making the contract with fendant was to receive, as commission, 20 the defendant. per cent. on all sales of silos made by him [3] 3. The plaintiff argues that there was without assistance, and 15 per cent. on all no contract between him and the defendant, sales made by him in which he received as- because their minds never met on the terms sistance from the plaintiff or his agents. of the contract. This argument is not good. The plaintiff sent the defendant a catalogue The minds of the defendant and of Viers, and other printed advertising matter, and the plaintiff's agent, did meet. According to also sent forms of contracts to be signed by the defendant's evidence, there was no misthe purchasers of silos. Those contracts understanding between him and Viers concontained limitations on the authority of the cerning the contract. Viers represented the agent making the sale. The plaintiff also plaintiff when the contract was made, and wrote the defendant to visit some parties the plaintiff was bound thereby. who had ordered silos and were about to [4] 4. The plaintiff's final complaint is cancel their orders, and to "get them lined that there was no consideration for the conup." Under the agreement made with Viers, tract. The plaintiff agreed to pay certain the defendant sold and assisted in selling a commissions for the sale of silos. The de number of silos in Butler county. The com- fendant agreed to sell silos for those commissions for those sales were not paid, and missions. These agreements constituted a were set up as a counterclaim against the contract. The promise of each was a suffinote.

cient consideration for the promise of the [1] 1. The plaintiff contends that there was other. Spencer v. Taylor, 69 Kan. 493, 77

NITY.

522, 108 Pac. 805. The defendant performed or does not accrue, and therefore the statute his part of the contract, and was thereafter of limitations does not begin to run thereentitled to the agreed compensation for the on, until payment has been made. Mentzer services rendered by him.

v. Burlingame, 78 Kan. 219, 97 Pac. 371, 18 The judgment is affirmed. All the Justic L. R. A. (N. S.) 585; 25 Cyc. 1113, 1114. And es concurring.

ordinarily this rule is applicable to a guar

antor. Here, however, the rights of the par(103 Kan. 92)

ties are affected by the fact that Leslie beLESLIE V. COMPTON. (No. 21492.) came a guarantor not only without any re(Supreme Court of Kansas. May 11, 1918)

quest on the part of Compton (as the court

specifically found), but also without any (Syllabus by the Court.)

knowledge of the fact on his part until this 1. GUARANTY Cam4, 100 REIMBURSEMENT action was brought (as he testified and the FROM MAKER.

One who guarantees the payment of a note court must be deemed to have found). It is by a contract made with the payee, without the true that by a contract with a creditor, made request or knowledge of the maker, and by without the request or knowledge of the reason of such guaranty is required to make pay: debtor, a person may bind himself as a guarment, may thereby acquire a valid claim against the maker for reimbursement. But in such a antor of the payment of the debt. 20 Cyc. case his attitude is that of a virtual purchaser 1412. But he does not thereby become a of the note rather than of a surety in the ordi- surety in the ordinary sense; his rights are nary sense, and if five years elapse after the not the same in all respects as those of a maturity of the note without the maker recognizing the guaranty, or even being informed of guarantor who has become such at the exit, the statute of limitations may bar the guar- press or implied request of the principal. If antor's claim, notwithstanding that action is he is compelled to pay the debt, he may have brought upon it shortly after his payment was made.

a remedy over against the original debtor,

but it is not based upon the principles of or(Additional Syllabus by Editorial Staff.)

dinary suretyship. 2. PRINCIPAL AND SURETY 182—RIGHTS OF “It seems

to be necessary as between the SURETY-REIMBURSEMENT.

surety and his principal, but not as between A surety may acquire a claim for reim- the surety and the creditor, that the principal bursements by paying a debt which is alive as should have notice of and accept the surety's to him, but outlawed as to the principal. offer to assume the relation.” 32 Cyc. 30. 3. LIMITATION OF ACTIONS 56(2)—INDEM "A surety cannot ordinarily recover indemnity

from the principal, unless he became surety at A guarantor who has become such at the the request of the principal, either express or request of the principal has the benefit of an implied." 1 Brandt's Suretyship and Guaranimplied promise of indemnity, and a new and ty, s 231. independent cause of action arises thereon whenever he is compelled to make a payment, irre

The following text from a recent work is spective of the time of maturity of the original borne out by the cases there cited: debt.

“But, in order to claim reimbursement of his

principal, it is generally held that the surety Appeal from District Court, Pawnee must become such at the express or implied reCounty.

quest of the former; otherwise he will be Action by J. F. Leslie against J. S. Comp- deemed a mere volunteer under the rule that ton. Judgment for defendant, and plaintiff the affairs of another even by paying his debts,

one who, without authority, intermeddles with appeals. Affirmed.

cannot thus make himself the creditor of him C. M. Williams, W. G. Fairchild, and H. S. whose debts he pays.”. Spencer on Suretyship,

8 118. Lewis, all of Hutchinson, and W. H. Vernon, Jr., of Larned, for appellant. G. P. Cline

Reference is made in the note thereto, and and Nellie Cline, both of Larned, for appel- Aict of authority on the subject, but what

in a subsequent section (section 139) to a conlee.

ever want of harmony there may be in the MASON, J. On October 24, 1899, J. s. results reached is largely due to the fact Compton executed a note to the Zeb Crider that different grounds of liability were in

voked and considered. Where it has been Commission Company, due April 24, 1900. About 30 days later J. F. Leslie signed a held that a guarantor who has become such writing guaranteeing the payment of the without the request of the debtor has no note. In June, 1901, the holder of the note claim to be reimbursed if he is compelled to sued Leslie, and in time obtained a judgment pay, the reason given has been that the case

Where against him, which he paid on April 16, is not one of ordinary suretyship. 1916. On May 29, 1916, Leslie brought the the right of reimbursement has been sustainpresent action against Compton for indemni- ed, it has not been because the guarantor ty. He was denied relief on the ground that was a surety in the usual sense, but because he had been guilty of laches; that the claim he was found to be entitled to be regarded

It has was stale and was barred by the statute of as a virtual purchaser of the debt.

been said that: limitations. He appeals. [1] The rule is that a cause of action in request of the creditor and without the knowl.

“The fact that the guaranty was made at the favor of a surety against the principal debt-| edge of the principal does not affect the liabil

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1

ity of the principal. The guarantor in such a debt in order to protect his own interests.' case is not an officious intermeddler having no Peake v. Estate of Dorwin, 25 Vt. 28. remedy." 12 R. C. L 1099.

These cases are regarded as establishing The meaning clearly is; in view of the de the doctrine that a guarantor who becomes cision cited in support of the statement, that such without the knowledge of the debtor, ignorance of the guaranty on the part of the and is required to make payment, has a debtor does not prevent his becoming liable valid claim for reimbursement. But they to reimburse the guarantor. The statement go no further than to hold that such a volthat his liability is not affected thereby, iruntary guarantor is not deprived of recourse regarded as meaning more than that his lia- against the principal debtor upon the ground bility is not prevented, goes beyond what is that he is a mere intermeddler. They prodecided in the case referred to. There Jones ceed upon the theory that it is competent for had executed a bond (note) to Smith, with the guarantor to become such by contract Black as surety. Smith sold it to Boyd; with the creditor alone; that when, by vir. Carter guaranteeing it without the knowl. tue of the liability so assumed, he is reedge of the makers. Carter was required to quired to make payment, he becomes virtualpay it, and sued Jones and Black. In the ly the purchaser of the claim against the opinion it was said:

debtor, or entitled to the rights of a purchas“The plaintiff Carter is clearly entitled to a er. In that view it is proper that he should decree against the defendants, unless their ob-have all the remedies of the original credjections that Carter was an officious inter: itor, but no meddler, and for that reason not entitled to

reason is apparent why he relief, and to the bill on account of Boyd's be- should have any added right, or why he ing a party plaintiff, can avail them.

* should be privileged to keep alive in this But it is said that Carter was an officious in- manner a claim which, so far as the debtor termeddler, and on that account can have no claim to the interference of a court of equity. could know, had long since ceased to have It is true that he paid the amount of the bond any validity. In Teberg v. Swenson, 32 Kan. to Boyd without any request, express or im- 224, 4 Pac. 83, this aspect of the matter is plied, from the defendants Jones and Black, emphasized by the fact that the guarantor or either of them. He could not then have recovered at law, as was decided in a suit at was given a formal assignment of the debt. law brought by him against them (Carter v. The opinion concludes with the words: Black, 20 N. C. 561). But in this court the plaintiff Carter stands in a very different situdid not volunteer to discharge the obligation of

"In the present case, however, the plaintiffs ation. He is not suing here for money paid the defendant. They were bound by their writfor the use of the defendants at their request. i ten guaranty to pay the debt of the defendant; He became bound on the bond at the instance and when they paid the same they took a writof the plaintiff Boyd and the defendant Smith, ten assignment of such debt from the creditor. and, having paid the amount of it to Boyd, he This gave them the same right to recover the claims as an equitable purchaser of it, and debt from the defendant which the creditor preseeks here to recover on it

in the viously had." 32 Kan. 229, 4 Pac. 86. same manner as Boyd might do.

• From what has been before said in considering the

In the present case Leslie was not a surety objection that Carter was an officious inter- for Compton in any sense that implied a conmeddler it is to be deduced that Boyd must be tractual relation between them. He had regarded here as bound to assign the bond to Carter."

Carter v. Jones, 40 N. C. 196, 198, made an agreement with the owner of the 199, 200, 49 Am. Dec. 425.

note to see that it was paid. On being com

pelled to make payment in fulfillment of that In a similar case B. & H. Boynton, as obligation he had a remedy against Compton, principals, and Jedediah Boynton, as surety, but it was by virtue of his being subrogated made a note to John A. Place. At the re to the rights of the payee, or of his having quest of Place, without the knowledge of become the virtual purchaser of the note. If the Boyntons, Dorwin also signed it. The Compton had requested the execution of the court said:

guaranty, or if he had known of it and rec"The act of Dorwin in signing that note ognized it in any way-if Leslie had been his at the request of Place did not create the rela; surety in the ordinary sense-he would have tion of principal and surety between him and the Boyntons; but, as the money was raised been chargeable with notice that, although for their benefit, very slight acts, recognizing no action had been brought against him withthat relation on their part, would place him in in five years of the maturity of the note, the light of surety for them. Without some evi. dence, however, of that character, the relation proceedings might have been taken against does not exist, and Dorwin, on payment of the Leslie, resulting in a payment which he note, could not have sustained an action against might be called upon later to make good. them for money paid ; for no one can make an. But, as Leslie merely acquired the rights of other his debtor, by paying his debt, without a request, either express or implied.

a holder of the note, the statute of limitaIf Dorwin, before the contract for delay was tions protected Compton against him to the made, had been called upon by the plaintiff [the same extent as against any other purchaser. purchaser of the note), and had paid the note, If it be objected that as a result of this view he would have been entitled, by subrogation, to all the rights and remedies of the creditor the statute of limitations had prevented a against the other parties thereon, and would recovery by Leslie against Compton before stand as a purchaser of the note. This right of his right of action against him accrued, a subrogation exists in equity, not only where the strict relation of principal and surety is sufficient answer is that no cause of action formed, 'but where one is compelled to pay the ever accrued in favor of Leslie; he is in the attitude of one who has bought an outlawed Action by George K. Phillips against J. H. claim. Compton was not at fault in the mat- Springer, as county treasurer of Franklin ter.

County and others. Demurrer to petition (2, 3) A surety may acquire a claim for re overruled, and defendants appeal. Affirmed. imbursement by paying a debt which is alive

S. M. Brewster, Atty. Gen., R. R. Redas to him, but outlawed as to the principal. mond, of Ottawa, and S. N. Hawkes and Jno. Reed v. Humphrey, 69 Kan. 155, 76 Pac. 390. L. Hunt, both of Topeka, for appellants. W. A guarantor who has become such at the B. Pleasant, of Ottawa, for appellee. request of the principal has the benefit of an implied promise of indemnity, and a new and

MASON, J. In 1915, George K. Phillips independent cause of action arises thereon and his wife executed deeds to their several whenever he is compelled to make a paynent, children by which they conveyed to each a irrespective of the time of maturity of the tract of land, upon the condition that the original debt. But a guarantor who becomes grantee should annually pay to them, or to such by an agreement with the creditor, to the survivor of them, so long as either should which the debtor is not a party, and is com- live, the sum of $1 per acre. In 1916, the pelled to make payment, has no claim based county commissioners undertook to tax the upon an implied promise of reimbursement; right of George K. Phillips to receive such bis rights are equivalent to those of a pur annual payment, and entered it upon the chaser of the debt, and his remedy is lost rolls as personal property belonging to him. whenever an action on that is barred. No He brought an action against the commissioninequity results from this view in the presers and treasurer seeking to enjoin the colent case. Compton was justified in believing lection of the tax. A demurrer to his petithat the note had been fully paid from the tion was overruled. The defendants elected proceeds of mortgaged cattle, or that all to stand upon their demurrer, and now ap: claims upon it had been abandoned. Leslie

peal. could probably have protected himself by The plaintiff contends that the execution giving Compton notice of his relation to the and acceptance of the deeds referred to crematter, and causing him to be made a party ated no right or property in him which is to the action on the note. At all events the subject to taxation, but that, whether or not running of the statute in favor of Compton he is correct in that contention, the defendwas not prevented by dealings between Les- ants are precluded from disputing it because lie and the holder of the note of which he of allegations in the petition which he ashad no knowledge, actual or constructive. serts constitute a good plea of res judicata

While not material to the decision, it may as to that matter. Such allegations are to be pertinent to add that the defendant claim the effect that in 1915, under similar circumed a meritorious defense apart from that stances, a warrant based upon the same here considered.

character of proceedings was about to be isThe judgment is affirmed. All the Justices sued against the plaintiff, and he had then concurring.

sought and obtained a permanent injunction

against the defendants, forbidding the collec(103 Kan. 108)

tion of the tax. The defendants assert that PHILLIPS v. SPRINGER, County Treasurer, the matters alleged do not amount to a prior et al. (No. 21528.)

adjudication of the issue here presented(Supreme Court of Kansas. May 11, 1918.)

that the facts pleaded merely show that for

some undisclosed reason the tax warrant (Syllabus by the Court.)

that was to have been issued in 1915 was not JUDGMENT Cw949(2) RES ADJUDICATA

valid. The rule is invoked that where, as in PLEADING.

this instance, the second cause of action is A deed contained a condition that the gran upon a different demand, a former Judgment tor should, during his life, receive an annual operates as an estoppel only as to matters join the taxation, as personal property, of the that were actually litigated. Stroup v. Pepgrantor's right thereunder, it is held' that a per, 69 Kan. 241, 76 Pac. 825. The question prior adjudication against its taxability is suffi- presented for determination is whether the ciently pleaded by averments that in a former action between the same parties, brought to allegations of the petition, when given the restrain the collection of the tax assessed construction favorable to the pleader to against the same right the year before, the same which they are entitled upon an attack by deissue bad been raised, and that the court adjudg: murrer, are sufficient to show expressly or ed “that the real estate

upon conditions subsequent, and that by fair implication that in the earlier case the assessment of plaintiff on account of said the court decided that the deeds created no pretended property was illegal, * and right in the plaintiff which was subject to

that said decision then had upon the taxation as personal property. The part of merits of this matter in said case rendered the matter of assessing said property res adjudicata." the petition referring to this phase of the

controversy reads as follows: Appeal from District Court, Franklin "That in March, 1915, the deputy assessor County.

of said Franklin township and the county clerk For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« 이전계속 »