Hersheield v. Lowenthal

The 'opinion of the court was delivered by Horton, C. J.: The question in this case is one of fact. L. M. Lowenthal, one of the defendants, testified in person before the district judge, and the plaintiff to sustain his ground of attachment introduced affidavits of admissions of the said Lowenthal. It is sufficient to say that we think there is sufficient evidence to sustain the finding of the district judge—at-least it does not appear that his finding was clearly erroneous. It is not necessary for us, in affirming the decision of the district judge; to say that the decision was absolutely right, or that we would have decided so if we had heard the case. (Urquhart v. Smith, 5 Kas. 447; Tyler v. Safford, 24 id. 580; Harris v. Capell, 28 id. 117; Brown v. Mabbett, 28 id. 723; Wilson v. Lightbody, 29 id. 446.) Counsel comments upon the fact that one of the partners, A. F. Lowenthal, made way with fourteen or fifteen hundred dollars’ worth of diamonds. This, however, was prior to the execution of the notes sued on. A. F. Lowenthal went away with the diamonds belonging to the partnership in September, 1884. The notes in suit were not executed until November 29, 1884. Subsequently, and before suit, the partnership was dissolved. Counsel refers to the fact that the notes were executed for goods and' merchandise sent by the plaintiff to defendants in-June; 1884, and asserts that the notes were-given [409] only as collateral evidence of the preexisting debt. There is evidence in the record tending -to show that the, notes were given as the absolute payment and extinguishment of said debt. The account for. goods and merchandise is not sued upon, but the action is upon the notes only. The evidence also shows that an account was taken in'November, 1884, between the plaintiff and the defendants, and that the note sued upon, with other notes, were taken at the time by the plaintiff from the defendants in settlement of the open account between the parties. Upon this matter the district judge decided in favor of the defendants, and we cannot disturb that decision. (Shepard v. Allen, 16 Kas. 182; Medberry v. Soper, 17 id. 369.) . The acceptance of the new notes in .settlement of the open account was the creation of a new debt, the consideration of the notes being the former account. Therefore the wrongful disposition of the diamonds in September, 1884, cannot be urged as a ground for attachment upon the notes executed November 29, 1884. The ruling and order of the district judge will be affirmed. Valentine, J., concurring. Johnston, J., not sitting.