Kansas Wheat Growers Ass'n v. Windhorst

The opinion of the court was delivered by Hutchison, J.: This case was decided in favor of the defendant in the trial court, appealed by the plaintiff and affirmed in this court on January 11, 1930 (Kansas Wheat Growers Ass’n v. Windhorst, 129 Kan. 528, 283 Pac. 638). A rehearing was granted on two propositions only; estoppel of the defendant, and the defense of not having subscribers for the estimated five million bushels requisite for organization of the association. On the rehearing reported in 131 Kan. 423, 292 Pac. 777, it was concluded the defendant was estopped to make the defense alleged in his answer, and without further considering the question of the number of bushels subscribed the judgment was reversed and the cause was remanded with instructions to render judgment for the plaintiff in accordance with the views expressed in the opinion, and upon the answers of the jury to the special questions, notwithstanding the general verdict. Our attention is now called to the provision in the marketing contract on which the action was based for the allowance of a reasonable attorney fee to the association in case action was necessary to enforce the terms of the contract against a member thereof, and the fact that evidence had been introduced on the hearing as to the amount of such fee; also, that the jury had failed to indicate in the answers to special questions the amount of wheát retained for feed and seed to be sown by the defendant himself or to be sold [22] for seed directly to wheat growers for all of the years under consideration, and that under the ternas of the contract the defendant is entitled to such deduction. It is therefore ordered, as supplemental to the order given in connection with the order remanding the cause-on the rehearing, that the trial court render a further judgment for plaintiff for an attorney fee in an amount that will to the court appear to be reasonable under the evidence that has already been introduced, and that the trial court in rendering judgment on the answers to the questions as to number of bushels of wheat raised by defendant for the different years involved, take into consideration and allow such deductions for feed and seed as are shown by the evidence now of record to be proper.