94 Kan. 494 | Kan. | 1915
The opinion of the court was delivered by
George Burdett brought this action against Joseph Surdez to recover possession of a team of mules. In his petition he alleged, substantially, that on or about May 20, 1912, C. C. Robbins executed and delivered to him a promissory note whereby Rob
Complaint is'made of instructions that were given and of the refusal of some that were requested. It is insisted that the jury should have been instructed that under the evidence and the law the plaintiff was entitled to the possession of the mules. The principal question in the case is whether the plaintiff accepted the $350 check in part payment of the note and mortgage lien he held on the Robbins’ mules, the possession of which is in controversy here. There is testimony to the effect that plaintiff declared the check to be good and expressly agreed to and did accept it in payment of the note and mortgage he held against the mules. Not only that, but when the balance of the note was paid by Robbins to the plaintiff, which occurred within a few days after the salé to defendant, Robbins turned the check over to the plaintiff and he turned the note over to Robbins as paid and discharged. In response to an inquiry, plaintiff stated that he held no mortgage on the mules. There is sufficient testimony to support the finding that full payment was made of the note, and that the mortgage was satisfied and discharged.
The plaintiff complains of an instruction which referred to the subject of fraud when he insists there was no such issue raised by the answer of 'the defendant. In the answer it is alleged, in substance, that plaintiff was not a real party in the action, but that the Edge-town company was the real party, that the company
“It is also the policy of the law to discountenahce fictitious litigation and compel the prosecution of every action by the real party in interest.” (p. 832.)
The issues in the case appear to have been fairly presented to the jury, and nothing substantial is found in the objections to rulings on requested instructions. On the matter of the check the court instructed the jury that:
“The mere taking of a bank check for a debt is not a payment of the debt until cashed, nor is it an ex-tinguishment of the obligation for which it was given, unless it is taken and accepted under an agreement between the parties that it is to be in full satisfaction of such debt, regardless of whether the check is after-wards paid or not.”
There was testimony which tended to support and which justified the jury in finding that the check was accepted as payment within the meaning of this rule.
No material error is found in the record and therefore the judgment is affirmed.