Adriance, Platt & Co. v. Kelley

The complaint contains two causes of action. It is alleged in the first cause of action that on or about the 8th day of December, 1903, the plaintiff and Frank L- Kelley entered into an agreement whereby the plaintiff employed said Kelley as its agent for the sale of agricultural implements, and said Kelley agreed among other things to guarantee the payment to the plaintiff of all machines sold by him and of all notes taken on account thereof under said agreement, and that all notes should be made payable at bank “and contain either the indorsement of .a responsible party, or a property statement showing the maker to be worth at least $1,500 in unincumbered real estate”; also to make settlement with purchasers on delivery or acceptance of machines under warranty, and to report all sales, and remit proceeds to the plaintiff promptly, and to make final settlement on or before the 1st day of September, 1904. It is further alleged that in consideration of the plaintiff entering into said agreement with said Kelley the defendant executed and delivered to the plaintiff an instrument in writing whereby she guaranteed tire performance of said first-mentioned agreement on the part of said Frank L. Kelley, “and the payment by him of all moneys and notes given as therein mentioned.” It is further alleged that under said first-mentioned-agreement said Frank L. Kelley took certain notes of purchasers of agricultural instruments, which notes were guaranteed by him to the plaintiff, and the complaint in its said first cause of action contains a statement of the amount due and unpaid on said notes, and concludes as follows:

“Mo part of which has been paid, although payment thereof before this action was duly demanded of the said defendant and said Frank L. Kelley, who failed and neglected to fulfill said first-mentioned agreement on his part in other respects, to wit, in procuring said notes to be indorsed by a responsible party or in procuring a property statement showing the makers to be worth, respectively, at least $1,500, in unincumbered real estate, neither of which was done, to the damage of the plaintiff in the sum of $199.74 of principal and interest as aforesaid.”

[2] The second cause of action alleged in the complaint is based on a contract between the plaintiff and Erank L. Kelley, and guaranteed by the defendant, which contract is similar to the one alleged in the first cause of action; but it differs materially, in that it does not contain the provision that notes accepted shall either be indorsed or contain the property statement, and consequently this branch of the case is not open to the criticism heretofore made. There is, however, no evidence authenticating the signatures of the makers of any of these notes. Neither is there any evidence that the notes were taken under the contracts alleged in the complaint, which were guaranteed by the defendant. The plaintiff called Erank L. Kelley as its witness, and he not only failed to identify the signatures of the makers of the notes, but also in respect to' many of the notes testified that he never had any conversation with the makers about the transactions. Objections to the admissibility of these notes in evidence were duly taken at the trial. Non constat the notes were taken and accepted by the plaintiff under some other contract for which the defendant is in no way responsible. There seems to be a failure of proof in respect to the entire case.

It follows that the judgment should be reversed, the referee discharged, and a new trial granted, with costs to the appellant to abide the event. All concur, except WOODWARD, J., dissenting.