
    J. D. Duncan v. A. F. Huse, Doing Business as the A. F. Huse Coal Company.
    
    No. 14,556.
    (85 Pac. 589.)
    SYLLABUS BY THE COURT.
    Practice, District Court — Demurrer to the Evidence. Upon a demurrer to the evidence the trial court is not called upon to weigh the evidence. If there is any testimony tending to •establish the material facts necessary to sustain the plaintiff’s cause of action the demurrer should be overruled.
    Error from Cowley district court; Carroll L. Swarts, judge.
    Opinion filed April 7, 1906.
    Reversed.
    
      C. T. Atkinson, for plaintiff in error.
    
      L. C. Brown, for defendant in error.
   The opinion of the court was delivered by

Greene, J.:

J. D. Duncan sued A. F. Huse on a promissory note. The note was signed “A. F. Huse Coal Company, per Alex. Wilson.” The defendant denied that he had ever executed the note, or that Alex. Wilson had any authority to execute a note for him or for the A. F. Huse Coal Company. The court sustained a demurrer to the plaintiff’s evidence, and rendered a judgment for the defendant.

This presents the question whether the evidence introduced by the plaintiff, construing it in the most favorable light for him, raised a question of fact for the consideration of the jury. The material part of the evidence introduced by the plaintiff is as follows,' the testimony of the first witness being that of A. F. Huse:

“Ques. What business were you engaged in at Arkansas City during the time you were there and for several years prior to going to Manhattan, Kan. ? Ans. In the coal business, and in the implement business; and was in the hardware business a .short time.
“Q. Now, did you sell your business when _ you left Arkansas City to go to Manhattan? A. No, sir; I had the coal business there.
“Q. You left the coal business? A. Yes.
“Q. When was that? A. It was in April, 1901.”
“Q. Well, now, whom did you leave ip possession of your coal-yard down there? A. I left Alex. Wilson..
“Q. You left Alex. Wilson? A. Yes, sir.
“Q. Now, when you left there you left him in possession of everything there, did you? A. I left him there to run the business for me.”
“Q. He conducted everything connected with the coal-yard and fully represented you? A. Yes, under my instructions.
“Q. When did you sell this coal-yard out? A. Sold it out in ’93 I think—
“Q. In 1903? A. 1903; I mean 1903.
“Q. About what time? A. I think it was September.
“Q. September, 1903? A. I think it was the latter part of September.
“Q. You think it was the latter part of September? A. I think that is when it was.
“Q. Now, from the time you left, in 1901, until 1903, Mr. Wilson had control of all the business there — of the coal business? A. He had charge of the business there for me; yes, sir.”

J. D. Duncan testified:

“Ques. Now, during the time that Mr. Wilson was there as one of his clerks was he a minor or subordinate clerk, or chief clerk? Ans. Why, he seemed to be chief clerk; he done the business.
“Q. Now, at the times that Mr. Wilson was in charge there, and Mr. Huse was still there also in that business, did Mr. Huse ever borrow any money from you? A. Yes, sir.
“Q. Through whom did he borrow it? A. Alex. Wilson.
“Q. Who paid it afterward? A. Huse.
“Q. Huse paid it himself? A. Yes, sir.
“Q. Now, coming down to the time that Mr. Huse left, as he says — you heard his testimony, did you? A. Yes, sir.
“Q. Now, he states that Mr. Alex. Wilson had charge of his'business there? A. Yes, sir.
“Q. Was. you around there as a rule? A. I was there sometimes; not very often.
“Q. Did you have a conversation with him about the business? A. Alex. Wilson?
“Q. Yes. A. Yes, sir.
“Q. It was while he was in possession there of the business as Mr. Huse has stated he placed him there? A. Yes, sir.
“Q. Now, on or about the 6th of July, did you have any conversation with him about borrowing money? A. Yes, sir.
“Q. Did he borrow any money from you for this company? A. Yes; after coaxing hard.
“Q. You may look at that note. A. That is the note he gave me.
“Q. Now, what did he say to you, at .the time he gave you this note, about what he wanted the money for — if connected with this business, I mean? A. He said the bank refused to let him have any more money and he had to borrow it to save Huse — to buy coal with.”

Albert H. Denton testified that he was the cashier of the Farmers’ State Bank of Arkansas City; that he knew A. F. Huse and John D. Duncan, and Alex. Wilson during his lifetime; that Huse conducted the coal business in person until 1901; that when he left he left Alex. Wilson in charge; that the business was conducted in the name of the A. F. Huse Coal Company thereafter; that they did business at his bank a part of the time; that they drew checks signed by the A. F. Huse Coal Company, by Alex. Wilson; that the coal company had borrowed money at his bank; that the note was signed “A. F. Huse Coal Company, by Alex. Wilson”; and that bésides the note given to his bank signed in this manner, and afterward paid, he had seen seven other notes signed in the same way.

George S. Hartley testified that he was in the banking business in the Citizens’ State Bank; that during the time that Mr. Wilson was in control and management of the business he transacted business at 'his bank; that he borrowed money there for the A. F. Huse Coal Company; that at the time he borrowed the money he gave notes to the amount of $1500 as evidence of the debt; that the notes were signed “A. F. Huse Coal Company, by Alex. Wilson,” were renewed by Alex. Wilson, and afterward paid by Huse.

This court has no hesitancy in saying that under the evidence the case should have been submitted to the jury. The judgment is reversed, and the cause remanded.

All the Justices concurring.  