Pease Piano Co. v. Matthews , 5 Kan. App. 370 ( 1897 )

Mahan, P. J.

The sole ground of contention in this case arises out of the construction of the contract as to the liability of the guarantor. The plaintiff in error contends that the guarantor was made liable for the defalcations of the agent of the Company prior to the making of the contract on December 15, 1892 ; that the agent’s conduct of the plaintiff’s business had not been satisfactory; that he had not properly accounted for goods consigned to him on commission, .and the Company required him to procure a guaranty as a condition of continuing the agency; and that he procured this contract, and the guaranty of the defendant in error.

The first assignment of error is with respect to ruling out certain evidence offered by the plaintiff. In the first place, the evidence offered was in relation to matters that transpired between Nash and the plaintiff Company prior to making the contract. This was incompetent and immaterial and the court properly excluded it. In the next place, the plaintiff offered to prove that there was some arrangement between its agent, Mr. Crane, who took the contract, with respect to Crane’s expenses in coming to Salina for the purpose of adjusting the business of the Company with Nash. The contract of guaranty contemplates nothing of the kind, and the evidence was properly excluded. Again, the Company offered to prove by an exhibit, a copy from the books of the Company, what Nash was entitled to, and, consequently, the balance for which the guarantor was liable. This was secondary evidence and clearly objectionable, and was properly excluded by the court. The plaintiff also offered to show — as a conclusion, a deduction from the books of the Company— what was the balance due “ upon the contract of guaranty sued upon.” This was clearly a conclusion, and there was no error in excluding it. The plaintiff also offered to prove by its bookkeeper in Chicago, what he knew about Crane going out to Salina, Kan. The answer was clearly hearsay and was properly excluded.

The second assignment of error is, that the court erred in sustaining the demurrer of the defendant to the evidence offered by the plaintiff on the trial of the action. Construing the contract, that the guarantor was not liable, under its express terms, for any defalcation of the agent prior to the making of the contract, the evidence showed clearly that the Company had all and more than was due to it, from instruments and the avails of instruments that were on hand at the time the contract was made and that were shipped to the agent thereafter. Had the court permitted the jury to take the evidence and had the jury returned a verdict for the plaintiff, it would have been incumbent upon the court to have it set aside. The demurrer to the evidence was properly sustained. The court committed no error in rendering judgment for the defendant. The court committed no error in its rulings in the proceedings had in the case ; it was not error to deny the motion for a new trial.

The judgment is affirmed.