Kohn & Weil v. First National Bank

The opinion of the court was delivered by Valentine, J.: This was an- action on an alleged parol contract entered into between the First National Bank of Fort Scott, and the firm of Kohn & Weil. The alleged contract was made on the part of the bank by B. P. McDon [433] aid, its president, and on the part of Kohn & Weil by Jacob Weil, a member of the firm. At the trial of this case in the court below, both McDonald and Weil testified with regard to what said contract was; and there was but very little if any other evidence with reference thereto. McDonald and Weil differed in some respects with regard to the terms of the contract. But as the whole case was fairly submitted to a jury, and as the jury found a general'verdict in favor of the bank, and against Kohn & Weil, we must now presume that the contract was just what McDonald testified that it was. The jury made no special findings, and there is nothing else in the record than what we have mentioned that would tend to impeach the general verdict of the jury. Then, upon the theory that the contract was just what McDonald testified that it was, the principal facts in the case are substantially as follows: During the winter of 1872, Kohn & Weil, of Leavenworth, were general dealers in hides, wool, etc., and William Euhman was their agent for such business at Fort Scott. Weil went to the bank of the plaintiff below, and told McDonald that Euhman was going to purchase hides, etc., exclusively for their firm, and ship the same to Taussig, Livingston & Co., St. Louis, Missouri; and in order to obtain funds for such purpose, Euhman would draw drafts on Taussig, Livingston & Co., not to exceed $1,500 at any one time, and that if the bank would cash such drafts they, Kohn & Weil, would be responsible for their payment. McDonald, for the bank, agreed to cash said drafts. Afterward Euhman drew the following draft, to-wit: “$1,000.00. Fort Scott, February 17th, 1872. “ Pay to the order of First National Bank, Fort Scott, One Thousand Dollars, value received, and charge same to account. * W. Euhman,” “ To Taussig, Livingston & Co., St: 'Louis.” The bank cashed this draft, then sent it to St. Louis, where it was presented to Taussig, Livingston & Co., who refused to pay it. It was then duly protested and sent back to the bank at Fort Scott. The bank then commenced this [434] action against Kohn & Weil, asking judgment for the amount of the draft, with interest, protest fees, damages, and costs. The facts are all' fully set forth in the plaintiff’s petition. And therefore, if the plaintiff may recover at all, if the bank has any cause of action against Kohn & Weil on the foregoing facts, the plaintiff may recover in this action. The objections to a recovery seem to be about as follows: lst.-No action can be maintained against Kohn & Weil on the draft, for they are not parties thereto, either as drawers, acceptors, or indorsers. 2d.-No action can be maintained on the parol contract, because, first, it does not purport to make Kohn & Weil acceptors of the draft, and could not, if it did; for an acceptance, or agreement to accept, must be in writing; (Gen. Stat. 115, §§ 8, 9, 10;) second, the contract is void, being in contravention of § 6 of the statute of frauds, (Gen. Stat. 505,) which requires that all promises to answer for the debt or default of another shall be in writing. There are perhaps some other objections made, but they are based upon what counsel think the facts ought to be, and not upon what the record actually shows them to be. For instance, counsel for Kohn & Weil would take the parol contract as Mr. Weil testified that it was, while we must take it as Mr. McDonald testified that it was. We do not think that any of the objections, or all of them taken together, are sufficient to defeat a recovery. In order to hold Kohn & Weil liable, it is not necessary to consider them as parties to said draft. They -were certainly not parties on the face of the draft, and yet their agent was; and generally, where an agent does business for an unnamed principal, he makes the principal as well as himself liable. (Wolfley v. Rising, 12 Kas. 535; Butler v. Kaulbaek, 8 Kas. 668, 674, et seq.) No one claims that Kohn & Weil were acceptors of the draft, or that they ever agreed to accept it. Taussig, Livingston & Co. are the only persons who could have accepted the draft, before it was dishonored, and no one would suppose that a contract would be made before a draft were drawn for any person to accept such draft. “Supra protest.” Said parol contract is not [435] void as being in contravention of § 6 of the statute of frauds. (Townsley v. Sumrall, 2 Peters, 170,: 181, Í82.) It is an original promise of Kohn & "Weil, that they will pay their own debt contracted by their agent Ruhman, if Taussig, Livingston & Co. do not pay it. ' The bank took judgment in the court below for merely the amount of money paid out by the bank on the draft with seven per cent, interest per annum. This judgment will be affirmed. All the Justices concurring.