Metz v. Clay

Citations

• 101 Kan. 45
• 165 P. 809
• 1917 Kan. LEXIS 12

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Evidence—Case for Jury. The evidence examined, and held sufficient to take case to the jury.</p> <p>2. Sale — Lumber Business — Agreement Not to Engage-in Lumber Business for Five Years — Consideration. The bond executed by the defendant to stay out of the lumber business for a fixed time within certain territory held to have been a part of the transaction covering the sale of his lumber yard to the plaintiff and to have rested on the same consideration.</p> <p>3. Same — Bond One for Penalty — Former Cases Considered. 'Following Evans v. Moseley, 84 Kan. 322, 114 Pac. 374, and Kuter v. Bank, 96 Kan. 485, 152 Pac. 662, the bond sued on herein is construed and h'eld to be one for penalty and not for liquidated damages.</p> <p>4. Same — Plaintiff’s Bight to Maintain Action. Although the plaintiff transferred the lumber yard in question to a corporation (in which he was largely interested officially and as a stockholder), he is not shown to have assigned the bond or to have disposed of another yard affected by the terms thereof. Held, that under the pleadings and evidence the claim that he is without right to maintain the action can not be sustained.</p>