Marr, who were then doing a real-estate and said plat. (3) That Gunn & Marr caused to insurance and loan business under the style be published in two issues of the Fort Scott of Gunn & Marr, of which contract the fol- Daily Monitor an extended editorial notice, lowing is a copy: Fort Scott, June 1, 1886, calling the attention of the public to this adThis agreement witnesseth, that in consid-dition, and that it was in the market for eration of value received Durkee & Stout sale. (4) That Gunn & Marr also caused a have hereby given Gunn & Marr the ex- small local notice to be published in every isclusive sale of the south-east quarter of the sue of the Fort Scott Daily Monitor from the south-east quarter of section 31, in township 2d of June to the 8th day of September, 1886, 25, range 25, in the county of Bourbon and directing the attention of the public to this state of Kansas, on the following terms: The land. (5) That Gunn & Marr did quite a parties to this contract agree to an appraise- large real-estate business, and a plat of said ment of $300 per acre for all of said property, ground as Durkee & Stout's addition was less the railroad right of way, being about 37 hung in their office for public inspection. acres, more or less. Gunn & Marr agree to (53) That Gunn & Marr never presented a plat said land as Durkee & Stout's addition plat of said ground to Durkee & Stout for to the city of Fort Scott, Kansas; to offer the execution until February 8, 1887, and said property for sale; to thoroughly adver- that Durkee & Stout never executed it. (6) tise and press the sale of said property vig- That these editorial and local notices, and orously, at the exclusive expense of Gunn & this plat of the addition hanging in their ofMarr; and all profits arising over and above fice, constituted all of the advertising which $300 per acre to be divided equally between Gunn & Marr did of this addition. (7) That the parties to this contract; Durkee & Stout the partnership of Gunn & Marr was disreceiving one-half and Gunn & Marr one-half solved July 23, 1886, by E. D. Marr retirof such profits. All the land lying north of ing, W. C. Gunn buying out the interest of the center of National avenue is to be platted said Marr in the business, including his first, Durkee & Stout reserving the right, at interest in the contract. (8) That an extheir option, to cancel this contract, so far tended notice of the dissolution of this firm, as it relates to the land lying south of the with the purchase of Marr's interest in the center of National avenue, but Gunn & Marr business, and that W. C. Gunn would conreserve the right to include the land lying on tinue the business, was given in the Fort said south of National avenue in the condi- Scott Daily Monitor of July, 1886, which pations of this contract by allowing Durkee & per was taken by both defendants. (9) That Stout $50.00 per acre more; that is, $350 per immediately after such notice of dissolution acre for said south side; it being understood the local notice above referred to was signed and agreed, however, that said south side by W. C. Gunn, instead of Gunn & Marr; shall not be offered for sale until all or near- and that said Durkee & Stout, particularly ly all of the north side is sold. The proceeds W. H. Stout, was in the habit of meeting of all sales, both cash and notes, are to be said Gunn in a business way, as often as turned over to Durkee & Stout whenever any once or twice a month. (10) That said desales are made, and all papers are to be made fendants knew of the dissolution of the firm in favor of Durkee & Stout, who shall credit of Gunn & Marr, and that W. C. Gunn was such proceeds as part payment, and continue conducting the business of Gunn & Marr, and to do so until the whole sum due Durkee & was acting instead of Gunn & Marr in doing Stout on that portion of said tract lying north whatever he did under this contract. (11) of the National road is paid, it being under- That said Durkee & Stout never objected, or stood that there shall be no division of profits made any question as to the right of said W. until the original price per acre for that por- C. Gunn to act in the place of Gunn & Marr. tion of said tract lying north of the National (12) That in June, 1886, shortly after this road shall have been paid. This contract contract, Durkee & Stout sold two pieces of shall expire on the 1st day of October, 1887. the land, and that the firm of Gunn & Marr It is understood that the ground now occu- did not sell any of the ground, and that W. pied by nursery stock can be sold only by re- C. Gunn did not sell any ground until in serving the right of possession until the close February, 1887. (13) That by reason of a of the season for planting trees in the spring controversy in the city over bonds voted to of 1887. It is further agreed that in case the K. N. & D. R. R., and for other reasons, Gunn & Marr elect to include in the contract the real-estate market was very dull in Fort that portion of said tract lying south of said Scott during July, August, September, OctoNational road, on the terms and conditions ber, November, and December, 1886, and in herein provided, that no division of profits on January, 1887. (14) That W. C. Gunn, for the sale of the same shall be made until said the purpose of disposing of this piece of land Durkee & Stout shall have received payment and other land which he had for sale, and in full for said south side. [Signed] DUR- for the purpose of booming' the city, exKEE & STOUT. GUNN & MARR.' (2) That pended considerable sums of money in adver shortly after the making of said contract tising the city during the latter part of 1886, Gunn & Marr caused said land to be sur- and about January 1, 1887, took a very act veyed and platted at their own expense, as ive part in getting up a syndicate for the Durkee & Stout's addition to the city of Fort purpose of buying and selling land and adScott, and gave to Durkee & Stout a copy of vertising the city, composed in part of for J. D. McCleverty, for plaintiffs in error. Ware, Biddle & Cory and E. M. Hulett, for defendant in error. eign capitalists, and was mainly instrumen- | either for himself or for the old firm of Gunn tal in raising the stock for the syndicate, tak- & Marr. After the dissolution, on July 23, ing $10,000 of stock in the same. (15) That, 1886, Gunn continued to act under the conmainly by the formation of said syndicate, tract of June 1st, with the knowledge and real estate in the city of Fort Scott, during without the objection of Durkee & Stout. the early part of February, 1887, suddenly This is shown by the following findings: increased in value, almost double. (16) That "(7) That the partnership of Gunn & Marr in the early part of February, 1887, said was dissolved July 23, 1886, by E. D. Marr Gunn sold two of these lots at the price fixed retiring, W. C. Gunn buying out the interest upon them by Durkee & Stout, and reported of said Marr in the business, including his the same to Durkee & Stout, when for the interest in this contract. (8) That an exfirst time they notified said Gunn that he tended notice of the dissolution of this firm, was no longer their agent; that he had aban- with the purchase of Marr's interest in the doned his contract, and failed to properly ad- business, and that W. C. Gunn would convertise and press the sale of the land. (17) tinue the business, was given in the Fort That on February 23, 1887, when this suit Scott Daily Monitor, of July, 1886, which was brought, said land, taken as a whole, paper was taken by both defendants. (9) would have sold out in lots at the rate of That immediately after such notice of disso$750 per acre. (18) That the amount due lution the local notice above referred to [in W. C. Gunn as damages under the evidence the fourth finding] was signed by W. C. is $5,912.50; and, as conclusion of law, the Gunn, instead of Gunn & Marr; and that court finds that the plaintiff is entitled to re- said Durkee & Stout, particularly W. H. cover said sum of $5,912.50 from the defend- Stout, was in the habit of meeting said Gunn, ants. Durkee & Stout excepted to the find- in a business way, as often as once or twice ings of the court and the judgment, and a month. (10) That said defendants knew bring the case here. of the dissolution of the firm of Gunn & Marr, and that W. C. Gunn was conducting the business of Gunn & Marr, and was act ing instead of Gunn & Marr in doing whatever he did under this contract. (11) That HORTON, C. J. 1. It is claimed by Messrs. said Durkee & Stout never objected, or made Durkee & Stout, who entered into a contract any question as to the right of said W. C. with Messrs. Gunn & Marr on June 1, 1886, Gunn to act in the place of Gunn & Marr." that the dissolution of the firm of Gunn & In our opinion, on account of the conduct Marr terminated their agency; that Marr, and acts of all the parties, the rights, duties the retiring member of the firm, had no au- and liabilities of W. C. Gunn were the same thority to sell or transfer his interest, or the after dissolution as before, excepting that the interest of the firm, in the contract of June contract of June 1, 1886, was to be fully car1, 1886, to Gunn; therefore, that as no new ried out on the part of Gunn & Marr, by contract was made in writing by Gunn, he Gunn only. Therefore, the point made that could not recover, as agent or otherwise, for the contract of June 1st was in its nature any damages or services subsequent to July personal only, and hence not assignable, need 23, 1886, the date of the dissolution. Against not, under the findings, be discussed. We this it is urged that Gunn, from the findings have examined the record, and think that the of the trial court, as continuing partner, reasonable interpretation of the evidence of succeeded, by the terms of his agreement the plaintiff below, and the fair inferences with Marr, to all the rights of the firm, if Messrs. Durkee & Stout recognized or approved of his agency, after the dissolution of the firm. It is held by a number of cases that an assignment by one partner of all his interest in the partnership is ipso facto a dissolution of the partnership, though the assignment is made to another partner. Marquand v. Manufacturing Co., 17 Johns. 525; Edens v. Williams, 36 Ill. 252; Rogers v. Nichols, 20 Tex. 719. But in Taft v. Buffum, 14 Pick. 322, it is held that an assignment by one partner to another of his interest in the partnership property is not ipso facto a dissolution of the partnership. Whether it so operated depended on its terms 3. The court allowed Gunn, as his measas to the intention of the parties. See, also, ure of damages, one-half of what the land Monroe v. Hamilton, 60 Ala. 226; Buford v. would have sold for at the commencement of Neely, 2 Dev. Eq. 481. The findings of the his action above the price Messrs. Durkee & trial court, however, show that the assign- Stout agreed to accept for the land, as stated ment from Marr to Gunn was recognized by in the contract. It is contended that the Durkee & Stout after it was made. Marr rule followed was erroneous. The findings does not claim any interest in the contract, of the court show: "(17) That on February therefrom, fully support the findings of fact. 2. As neither Messrs. Gunn & Marr nor the continuing member of the firm, W. C. Gunn, had any interest in the land described in the contract, but only shared in the surplus or profits, the agency of Gunn was revocable. Hawley v. Smith, 45 Ind. 183. But, although Messrs. Durkee & Stout had the power to annul the contract and refuse to permit Gunn to act, yet, when they so refused, without any just reason or excuse, after having recognized Gunn as the continuing member of the firm, they were liable to him for all damages resulting proximately from the breach of the contract. 23, 1887, when this suit was brought, said | This was an action brought by the defendland, taken as a whole, would have sold out ants in error against the plaintiffs to recover in lots at the rate of $750 per acre." "(13) $113.80 and costs. The facts, as shown, are That by reason of a controversy in the city as follows: E. E. Weaver & Co., hardware over bonds voted to the K. N. & D. R. R., merchants at Emporia, became embarrassed, and for other reasons, the real-estate market and for the purpose of securing indebtedness was very dull in Fort Scott during July, held by Kellogg & Sedgwick, as agents and August, September, October, November, and attorneys for non-resident claimants, gave December, 1886, and in January, 1887. (14) Sedgwick, of the said firm of Kellogg & SedgThat W. C. Gunn, for the purpose of dis- wick, on August 25, 1886, a mortgage on posing of this piece of land and other their stock of goods and book-accounts. land which he had for sale, and for the Sedgwick took immediate possession under purpose of booming' the city, expended the mortgage, and placed George Bragunier, considerable sums of money in advertising one of the plaintiffs in error, in charge of the the city during the latter part of 1886, and store. The goods were left in the room about January 1, 1887, took a very active formerly occupied by Weaver & Co. Brapart in getting up a syndicate for the purpose gunier had the keys to the store, and full of buying and selling land and advertising charge, and sold a sufficient amount of the the city, composed in part of foreign capital- goods to pay the mortgage debt, costs, and ists, and was mainly instrumental in raising expenses. On the 16th day of August, 1886, the stock of the syndicate, taking $10,000 of defendants in error obtained a judgment stock in the same. (15) That, mainly by against E. E. Weaver & Co. for $113.80, inthe formation of said syndicate, real estate cluding costs. Afterwards, on the 13th day in the city of Fort Scott during the early of October, 1886, they filed the necessary af. part of February, 1887, suddenly increased fidavits, and caused to be issued a garnishin value, almost double." We think that ment order, and caused the same to be served Gunn, owing to the wrongful revocation of upon George Bragunier, who, in obedience his agency by Messrs. Durkee & Stout in the to said order, appeared, and was examined early part of February, 1887, was entitled to under oath. This examination showed that recover such compensation or damages as he was in charge of the store; had full poswould be equal in amount to his share of the session of the keys to the room; sold goods profits which would have resulted had the and collected book-accounts; and, as the lands been sold by him. Hawley v. Smith, money was received, he deposited it each day supra. This is what he really recovered. to the credit of Sedgwick, to be applied on Therefore, no erroneous rule was followed, the mortgage debt, and at the time of the nor are the damages allowed excessive. service of this order he had sold sufficient of Messrs. Durkee & Stout cannot take advan- the goods and collected of the accounts tage of their own wrongful acts; and, as enough to pay the entire mortgage debt, and Gunn was prevented by them from perform- the same had been deposited to the order of ing a contract, his remedy is the same as if Selgwick. It also showed that Bragunier he had performed. We perceive no error in had, at the time of the service, goods to the the record, and, therefore, the judgment of amount of $690, and some $250 of bookthe district court will be affirmed. All the accounts and notes; that on the day of the justices concurring. answer he turned all of the goods and accounts over to Kellogg & Sedgwick. On this (41 Kan. 542) BRAGUNIER et al. v. BECK & CORBETT IRON answer and showing the justice, before whom Co. (Supreme Court of Kansas. May 10, 1889.) CHATTEL MORTGAGE-GARNISHMENT. 1. Where a mortgagee of personal property, consisting of a stock of goods and book-accounts, places an agent in possession of the stock, with full power to sell and to collect the book-accounts, and such agent, acting as general manager, sells goods, and collects book-accounts sufficient to pay off the mortgage debt, costs, and charges, and there is left in his hands, after such sale, a large amount of goods and book accounts, held, the agent has such possession of the property of the mortgagor as will make him liable to answer in garnishment to a creditor of such mortgagor. 2. Where a mortgagee of personal property sells of the same sufficient to pay the mortgage debt and charges, and after such sale there is left an excess of goods in his possession, held, that such mortgagee is liable to answer in garnishment for such excess in an action by a creditor of the mortgagor. (Syllabus by Clogston, C.) Commissioners' decision. Error from district court, Lyon county; CHARLES B. GRAVES, Judge. the answer was made, directed Bragunier to turn over to the constable sufficient of the goods to satisfy the claim of the plaintiffs below, defendants in error, which demand was refused by Bragunier. Kellogg & Sedgwick, at the time of the service of the order, and at the time the goods were turned back to them, had full knowledge of the service upon their agent, Bragunier. This action was brought against Bragunier, Kellogg, and Sedgwick to recover the amount of the judgment, and costs, and upon the answer and the facts stated the matter was submitted to the court, and judgment rendered for the plaintiffs below, defendants in error, for the amount claimed; whereupon the defendants appealed to the district court. Trial by the court, and judgment was again rendered for the plaintiffs below, defendants in error. Defendants below now bring the case here. Kellogg & Sedgwick, for plaintiffs in error. Cunningham & McCarty, for defendants in error. CLOGSTON, C., (after stating the facts as above.) Two questions are raised by the plaintiffs in error: First, was Bragunier, the party served with garnishment, such an agent, and did he have such possession of the property of Weaver & Co., as would make him liable in garnishment proceedings? Second, are mortgagees of personal property, while in the possession of the property, liable in garnishment? In that case the that presented in this case. Fountain v. Smith, 30 N. W. Rep. 635. But where he had the property in his possession, and refuses to sell and satisfy the mortgage, or where he has sold and satisfied his mortgage, and there remains an excess of property in his hands, in that class of cases we think the authorities are also well settled that he must answer garnishment. These questions settle this case, and we are satisfied from the answers of the garnishee that at the time of service upon him he had such control, of the property as made him liable; and, as this property was turned over in violation of the process of the court, the defendants were liable to the plaintiffs below for the amount of their judgment and the costs. It is therefore recommended that the judgment of the court below be affirmed. As to the first of these questions, it is one of some doubt, and each case of this charac-said: "If he had the property, and had an ter must be determined upon the facts sur- excess in his hands over his debt, that would rounding it, and no rule can be established have presented a different case; or if he had that will apply to all of this class of cases; refused to sell according to the terms of the for it has been held, and doubtless properly, mortgage, and converted the property to his that some classes of agents are not liable; own use, that would have presented a differsuch, for instance, as hotel-keepers while in ent question." We think the rule is well possession of the baggage of their guests, established that where the mortgagee is in and persons who hire livery teams, common possession of the mortgaged property, and is carriers, persons in charge of property under fairly carrying out the terms of the mortconditional sales, where goods are turned gage, or has failed to get possession of the over for examination or trial. All those mortgaged property, although entitled to its classes of possession have been held not suf- possession, in all those classes of cases the ficient to create a liability to answer in gar-nortgagee is not liable to such process. nishment. Wap. Attachm. 194. But we think few cases can be found where this rule has been applied to persons who are in charge of stocks of goods or stores as general managers or agents having the care, control, and management of such business. In this case Bragunier was in one sense the agent of Kellogg & Sedgwick, yet Kellogg & Sedgwick were simply the agents of the original creditors. They were representing non-resident creditors of Weaver & Co., and neither they nor Bragunier had any interest in the goods, but were simply trustees or agents for the persons named in the mortgage. At the time of the service the goods were held by Bragunier under the mortgage, but at that time the mortgage had spent its force, and all rights under the mortgage had ceased, for the reason that a sufficient amount of the goods had been sold and the money deposited in bank to pay off the mortgage debt. The mortgage then did not give any possession to Sedgwick or Bragunier, but the goods were held by them subject to Weaver & Co.'s order. If this is true, then the goods were subject to attachment as the goods of Weaver & Co., and, if so, surely subject to garnishment in the hands of the persons who had actual possession and charge of the goods. Victor v. Insurance Co., 33 Iowa, 210; Jones v. Crews, 64 Ala. 368; Caldwell v. Coates, 78 Pa. St. 312; Webster v. Steele, 75 Ill. 544. Under these facts, we think Bragunier's possession and agency were sufficient to require him to answer and be re-agent in the community in which such agent is 2. Where an insurance company holds out an sponsible for the goods. See Buddig v. Simp- doing business as its general agent, and third par son, 33 La. Ann. 375. ties transact business with him as such agent, in good faith, and without knowledge of his limited pany; and where such agent is shown to have had authority, the acts of such an agent bind the comauthority to renew policies in any manner, and he does renew a policy in a manner not authorized by insured, the agent's renewal must bind the comthe company, but that fact is not known to the The second claim we think is not well taken, and the authorities cited by counsel do not bear out their theory. In Dieter v. Smith, 70 III. 168, cited by counsel, the court held that property in the hands of a mortgagee was not subject to garnishment, but it was upon a very different state of facts from v.21p.no.10-41 PER CURIAM. It is so ordered; all the justices concurring. (41 Kan. 524) WESTERN HOME INS. Co. v. HOGUE. (Supreme Court of Kansas. May 10, 1889.) APPEAL-INSURANCE. 1. Where a case is made and settled for the su preme court, and the party making it desires that it shall be shown that the case contains all the evidence that was introduced on the trial, a stateitself, and not in the certificate of the judge who settles the case. Eddy v. Weaver, 37 Kan. 540, 15 Pac. Rep. 492. ment to that effect should be inserted in the case pany. (Syllabus by Clogston, C.) Commissioners' decision. Error from dis- | that said Hunter had authority to issue said trict court, Johnson county; J. B. HINDMAN, renewal receipt, and had no notice to the conJudge. trary; said defendant having held out said This was an action brought by the plain- Hunter as its general agent at Spring Hill, tiff in error in the district court of Johnson Kan. (5) Upon the 9th day of November, county to recover upon a policy of fire insur- 1886, the property mentioned in said policy ance. Trial by the court without a jury, was destroyed by fire, and was, at the time which made special findings of fact and con- said fire originated, of the value of twentyclusions of law, and upon such facts and six hundred dollars. (6) That on the 9th conclusions rendered judgment for the plain-day of November aforesaid, an agent of the tiff. The findings of fact and conclusions of defendant, duly authorized to adjust and pay law are as follows: "(1) That upon the 3d losses, refused, upon request, to settle said day of August, A. D. 1885, the defendant, loss, and placed his refusal upon the ground by its policy of insurance No. K, 684, duly that said Hunter had no authority to issue signed by the president and secretary of the said renewal receipt aforesaid. That within defendant, and countersigned by the duly- the time required by said policy the plaintiff authorized agent at Spring Hill, Kan., did notified the defendant of the loss in accordinsure the plaintiff against loss or damage by ance with the terms of said policy, which fire to an amount not to exceed five hundred said proofs of loss were retained by said dedollars, on his general stock of hardware, fendant, without objection either to the subcutlery, tin-plate, tinners' stock, stoves, farm stance or form thereof. (7) That no part of implements, wagons, pumps, fruit-cans, the said sum of five hundred dollars, menbarbed wire, and such other goods as are tioned in said policy, has been paid by the usually kept for sale in country retail hard-defendant. And as conclusion of law the ware and implement stores, [his own, and court finds that the plaintiff is entitled to reheld by him on commission;] all contained cover of the defendant the sum of four hunin the two frame buildings situated adjoin-dred and fifty dollars and costs of suit." ing (one attached) on lots No. 12 and 13, Judgment for four hundred and fifty dollars block No. 2, Sprague's addition to Spring and costs. Defendant brings the case here. Hill, Kan., with permission to keep for sale Beeson & Baker, for plaintiff in error. fifty pounds of blasting powder, and twenty- Samuel T. Seaton, for defendant in error. five pounds of gunpowder, in close metal cans, sold only by daylight, and with $2,700 other concurrent insurance permitted, [subject to the terms and conditions expressed in said policy,] for a period of one year, to-wit, from the 3d day of August, 1885, at noon, to the 3d day of August, 1886, at noon. Said policy is attached to the petition of the plaintiff herein. (2) That as a consideration for said insurance the plaintiff paid to the defendant the sum of twenty dollars. (3) That upon the 3d day of August, 1886, the plaintiff paid to G. C. Hunter, then the duly-authorized agent of the defendant at Spring Hill, Kan., the sum of twenty dollars as a consideration for the renewal of said policy for one year, to-wit, from the 3d day of August, 1886, at noon, to the 3d day of August, 1887, at noon, and said G. C. Hunter, for and in consideration thereof, issued to the plaintiff a renewal receipt, which is attached to the petition herein. And the said G. C. Hunter appropriated the said twenty dollars to his own use, and never reported any renewal of said policy to the defendant, and the officers of the defendant never knew of any renewal or attempted renewal of said policy, until after the fire hereinafter mentioned. (4) That said G. C. Hunter was duly authorized by said defendant insurance company to issue policies of insurance sent to him in blank by the company; to receive the premium therefor, and renew outstanding and expiring policies, by issuance of a new policy, but not by renewal receipt. That plaintiff, at the time he paid said twenty dollars and received said renewal receipt therefor, believed, and had reason to believe, CLOGSTON, C., (after stating the facts as above.) Plaintiff in error contends that the findings of fact are not supported by the evidence. Upon this question it is insisted by the defendant in error that the record does not purport to contain all the evidence offered or given at the trial; that the only recital to that effect is contained in the certificate of the trial judge to the made case, which certificate recites that it contains all the evidence offered at the trial, and upon exami nation of the case this claim is found to be correct. This question has been thoroughly discussed and settled by this court in Eddy v. Weaver, 37 Kan. 540, 15 Pac. Rep. 492, in which it was held that a case must contain the recital, and not the certificate of the judge who settles the case. This disposes of this question. The only remaining question left is, do the pleadings and findings of the court sustain the judgment? It is not claimed by the defendant in error that the findings do not support the judgment. It is perhaps in this connection necessary to notice the one question raised by the plaintiff in error upon the findings of the court. The court found that the agent who made this renewal certificate had authority to renew policies, though not in the manner of renewal certificates, but by issuing new policies. Now, it is contended by the plaintiff that the agent, not being authorized to issue renewal certificates, and the fact that the company did not so renew its policies, the acts of this agent would not bind the company. Where it is shown, as in this case, that the agent is a general agent, and is so |