Barnes v. Gragg

28 Kan. 51 | Kan. | 1882

The opinion of the court was delivered by

Horton, C. J.:

Action by Barnes on a promissory note of $1,941.23, executed by the defendant to. the Valley Bank and Savings Institution, and assigned by the bank to the plaintiff.

The question for our consideration resolves itself into this: Were the matters set forth in the second and fourth defenses of the answer of the defendant sufficient in law to defeat a recovery? It is not contested that the parties had the legal capacity to make the contract set forth in the second and fourth defenses of the answer, nor is it claimed that such contract is without consideration, or illegal, or in any other respect void. It is, however, argued that the evidence tending to support the alleged contract was improbable and unreasonable, and that there could have been no motive or purpose on the part of the bank to enter into such an agreement, as the defendant was liable on the original note as a joint maker with John Gragg, and the bank could have collected the note from him without any suit against John Gragg, or the execution of any new or other note.

Whether the contract was wise or unwise, it is not for us to determine. Even if the contract was a ridiculous and foolish one for the bank to make, if the parties thereto had capacity to make it, and such contract rested upon a valid •consideration, it was valid and binding between the parties for all purposes. If the original note was largely usurious, we can readily perceive that the agreement set forth in the answer might have been beneficial for the bank, and not at all unreasonable. The answer in this view constituted a defense to the action, and if established on trial, plaintiff was not entitled to recover. The evidence of defendant and one Simpson proved substantially all the facts alleged in the answer; and as the jurors were the exclusive judges of the evidence, of its weight, and of the credibility of the witnesses, and from their findings must have accredited the witnesses for the defendant and rejected the evidence offered by the plaintiff, and as the trial court afterward rendered judgment upon the verdict of the jury, we perceive no valid reason for setting the judgment and verdict aside.

Counsel for plaintiff claim, however, that not only was the .great preponderance of the testimony against the verdict, but that such preponderance was overwhelming. The indorsement of April 28, 1876, on the face of the note executed October 1, 1875, signed by the cashier and acknowledging the receipt from the defendant of $1,949.04 in full payment, •bears very heavily against the strength of the evidence of the defendant, and we must confess that a perusal of all the •evidence makes the claim of the plaintiff the more reasonable one. But receipts are always explainable by testimony, and the jury had the right to disbelieve the oral evidence of the plaintiff, as the evidence of the defendant conflicted therewith. Therefore we cannot say that there was no testimony to sustain the verdict, and long ago it was established as a rule of this court, that the verdict of a jury will not be disturbed if there is positive testimony to sustain it. Of course if there was a total want or failure of evidence to sustain the verdict, this court would set aside the judgment. The case of the' plaintiff does not reach up to this point. The most that can be said, we think, is that the preponderance of the evidence was against the verdict.

Counsel for plaintiff further contend that there was a variance between the evidence of defendant and the contract set up in the answer. They say, in support of this, that the bank did not assign the note of'October 1, 1875, to the defendant; and again, that the defendant did not return .said note. We do not regard this variance material, as the defendant testified that the arrangement was that the suit should be brought upon the original note in his own name against Gragg; and it appears that an action was brought upon it in his own name, and a judgment recovered therein. Again, at the time of instituting such action, he filed the original note with the clerk of the court, and in his answer to this action, he offered to assign the judgment and the promissory note to the bank, or to any person that it might direct. We do not think the court erred in refusing to instruct the jury to find for the plaintiff, nor do we see any material error in the instructions given.

The plaintiff1 might have, asked instructions upon his part, setting forth specifically the entire arrangement' pleaded as a defense; but no instructions were asked by him, and the instructions as given we do not think erroneous.

The judgment of the district court will therefore be affirmed.-

All the Justices concurring.