Holland-Meisell Co. v. Kelly

BEASLY, J.,

pro tem.

The Holland-Meisell Company had judgment against Kelly for $635.25 on October 1, 1917, from which Kelly appeals. The plaintiff was the agent of the Grand Lake Company, a paper manufacturing concern of the state of Maine, under an agreement—the terms of which were known to Kelly—by which the Holland-Meisell Company was held responsible for the solvency of all credit extended by it in the state of California upon sales of goods of the Grand Lake Company. By the terms of this contract the plaintiff guaranteed the payment of all accounts for goods of the Grand Lake Company sold by it within seventy-five days from the date of sale, and agreed to pay for all goods taken from consigned stock of the Grand Lake Company within seventy-five days whether or not it had received pay-, ment therefor from the customer. Kelly had been a member of the Holland-Meisell Company when this contract was entered into, and, as we have said, was familiar with the obligations of the Holland-Meisell Company to the- Grand Lake Company under the contract. The complaint was upon an account for paper sold and delivered from stock in the possession of the plaintiff under its contract with the Grand

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Lake Company. Kelly answered the complaint with a cross-complaint, in which he set up that the plaintiff was the agent of the Grand Lake Company in all the transactions set forth in the complaint, and that as such agent it had sold to him a carload of paper, which the Grand Lake Company had refused to deliver, to his damage in a sum considerably larger than the amount of the judgment afterward given against him.

The defense may be treated as an answer to the plaintiff’s claim, upon the ground that the Holland-Meisell Company is not the true' party in interest and that the action should have been begun in the name of the Grand Lake Company, and, upon the cross-complaint, as an assertion of a claim for damages to offset the demand sued upon.

Upon the first phase of the defense it may be said that as Kelly was thoroughly informed as to the obligations assumed by the Holland-Meisell Company upon the sale to him of the goods declared upon in the complaint, and knew that when that company sold him these goods it became obligated to the Grand Lake Company to pay for the same whether he paid the Holland-Meisell Company or not,-he is clearly estopped from asserting that the plaintiff had not the right to sue him on this claim.