Benham v. Smith

53 Kan. 495 | Kan. | 1894

The opinion of the court was delivered by

Horton, C. J.:

A preliminary question is raised. It is insisted that the case was not presented for settlement within the time fixed by the trial court. On April 25, 1890, the court overruled the motion for a new trial, giving 90 days to make and serve the case, 30 days to suggest amendments, and 10 days to present the ease for settlement, five days’ notice thereof to be given. The time to present the case for settlement ended on the 2d of September, 1890. The case was served in time, and service thereof admitted in writing by the attorneys of plaintiff below on the 19th day of July, 1890. On the 8th of August, 1890, notice was given that the case would be presented for settlement on September 3, 1890, to the district judge. Service thereof was acknowledged, as follows: “Service of the above notice is hereby acknowledged, this 8th day of August, 1890, and all further notice is hereby waived.— ANDERSON & Littick, Attorneys for Plaintiff” The case was settled and signed on September 3, 1890, by the district judge. At the time no exceptions were taken to the settling or signing of the case.

Within the authority of Hill v. National Bank, 42 Kas. 364, the court below had the power to settle and sign the case, although the time first fixed by its order had expired. The statute limits the time within which a case must be made and served, but no such limitation exists with respect to settling and signing a case; and the court may, for good and sufficient reasons, postpone the date for the presentation of the case, and cause it to be taken up upon reasonable notice at another time.

“An order of the court fixing the time for such action, or providing that it should be done upon certain notice to be given by either*party, should not be disregarded. If the party making the case ignores the order, he does so at the peril of the refusal of the court to settle and sign at a later date.” (Hill v. National Bank, supra.)

Upon the merits of the case, it is insisted that the answer is fatally defective, because it fails to allege that the defendants below had any power or authority from the association to execute or deliver the note, and also because it fails to allege that the note is the identical one sued on. The answer was not demurred to, nor was there any motion filed to make it more definite or certain. A reply was filed. Under 'such circumstances, the allegations contained in the answer may be liberally construed. The answer refers to “Exhibit A,” attached thereto and a part thereof, which is a mortgage from the Odd Fellows’ Hall Association to J. B. Smith and others, to secure them, as creditors of the association, for various sums of money; It is stated in the mortgage that there is due from the association to Smith $179.74, evidenced by a promissory note of May 1, 1885, and payable one year after date. The mortgage concluded as follows :

“In witness whereof, the said party of the first part has consented this deed to be signed by its president and attested by its secretary, and its corporate seal to be hereto affixed, the day and year first aforesaid. W. M. BeNHAM,

President Oolwmbus Odd Fellows’ Sail Assoeiation.

“Attest: A. T. Lea, Secretary.”

The answer alleges that Smith received a note from the association for $179.74, and that W. M. Benham was the president and A. T. Lea the secretary of the association. We think it sufficiently appears from all the allegations of the answer that the note sued on is the one therein referred to. If the allegations in the answer are true, they are sufficient to show that the note and mortgage were parts of the same transaction and may be construed together. If the association executed the note, and Benham and Lea only signed the same because they were officers or agents of the association, the note is the obligation of the association, not of Benham and Lea. •

If it is not clear from the face of the note whether Benham and Lea contracted on behalf of the Odd Fellows’ association or- for themselves, then, as between the original parties, extrinsic evidence may be introduced to show in fact it was the intention of all the parties, at the time of the execution of the note and its acceptance, to bind the association only, not to make Benham and Lea liable personally. (Fullerton v. Hill, 48 Kas. 558; Kline v. Bank of Tescott, 50 id. 91.) The answer stated a sufficient defense, and the trial court committed error in sustaining the motion for a judgment on the pleadings.

The judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.