Ferguson-McKinney Dry Goods Co. v. Grear

SYLLABUS BY THE COURT, 1. Practice, District Court — Appellate Jurisdiction. A district court on the trial of an action appealed from an inferior court has such jurisdiction only as had the court from which the appeal was taken. 2. Contracts — Fraud—Silence. One party to a sale or deal is under no legal obligation to communicate to the other all the facts within his knowledge which may influence the transaction. He may not deceive, mislead or prevent investigation. He may be silent and be safe.

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. The plaintiff is a wholesale mercantile corporation of St. Louis, Mo., and the defendants were, prior to the great flood of 1908, copartners in a retail business in North Topeka, Kan. The flood invaded their store and, it is claimed, destroyed or injured a large portion of their stock of goods and utterly destroyed their books of account, and by reason thereof they had no record of their indebtedness, nor to whom owing. There is also evidence that before the flood the defendants were solvent but thereafter their indebtedness was greater than the amount of their assets. Soon after the flood the defendants attempted to effect compromise settlements with their creditors severally, and with a number effected such settlements. The plaintiff having presented an account for $166.76, one of the defendants went to St. Louis and attempted, without success, to settle for a smaller sum. Thereafter the plaintiff pressed its claim for the full amount of the account and finally threatened suit by letter. This letter the defendants referred to their attorney, who wrote to the plaintiff in answer that defendants were attempting to settle all their indebtedness, and were being assisted by Mr. Abram Troup, and others, who to protect themselves were buying claims of creditors and having the same assigned to them, and asked to have a written assignment, which was enclosed in the letter, executed by plaintiff, attached to a sight draft and returned to Topeka to be delivered to Mr. Troup on payment of $166.76. This was accordingly done, and Mr. Troup paid the amount specified. The assignment is as follows: “St. Louis, Mo., October 30, 1903. “For value received we hereby sell, assign, transfer and set over to Abram Troup, all our right, title and interest in and to any and all claims we may have against the Spear Company of North Topeka, Kan. Ferguson-McKinney Dry Goods Co., Alex. M. Bogy, Sec’y.” Thereafter the plaintiff presented another account to the defendants for $268.25, for goods claimed to have been sold to them before the flood, and payment thereof being refused it brought suit thereon in the city court of Topeka and obtained judgment for the amount claimed. The defendants appealed to the district court, and the case was therein tried to a jury, who in addition to a general verdict for the defendants returned the following special findings: “(1) Ques. Is it not a fact that when plaintiff executed the assignment to A. Troup it did not intend it to cover any other than the account of $166.76? Ans. Yes; in settlement of all claims. “ (2) Q. Is it not a fact that at all times the plaintiff refused to accept anything less than the full sum of $166.76 in settlement of its account of that amount, and did not the defendants and J. J. Schenck know that to be true when the assignment was procured? A. Yes. “(3) Q. Is it not true that J. J. Schenck prepared said assignment and forwarded it to plaintiff’s collector, and that plaintiff executed it as prepared by Mr. Schenck?' A. Yes. “(4) Q. Is it not true that Mr. Schenck acted for Mr. Troup as his agent and attorney in the procurement of this assignment? A. No. “(5) Q. Is it not true that the defendants and Mr. Schenck knew at the time this assignment was procured that plaintiff intended it to cover the account of $166.76, and that account alone? A. No; to cover all claims. “(6) Q. Is it not true that Troup paid for said assignment under an agreement he had with the defendants that they would reimburse him for the amount he paid ? A. No. “(7) Q. Is it not true that Troup was not purchasing this account for profit to himself, but simply as an accommodation for the defendants, and for the benefit of the defendants, and under an agreement with the defendants that they would repay him any money that he paid for the account? A. Yes, but not under any agreement. “(8) Q. Is it not true that defendants have repaid to Troup the exact sum that he paid for said assignment, together with interest thereon, and no more, and that Troup had no claim against the defendants on account of said assignment after being paid therefor? A. The evidence showed that they paid more.” Thereupon, on March 24, 1906, the court rendered judgment against the plaintiff for costs. On March 26, 1906, the plaintiff filed its motions for judgment on the special findings and for .a new trial, respectively, which being denied it brings the case here.