41 Kan. 215 | Kan. | 1889
Opinion by
The defendant in error commenced this action against the plaintiffs in error in the district court of Cowley county, in December, 1885, to recover on two promissory notes executed by the plaintiffs in error: one dated on the 7th day of June, 1883, for $132.50, payable in nine months, and one dated on the 9th day of June, 1883, payable in twelve months, for $132.50; both bearing 10 per cent, interest from date, and both payable to the order of John Thompson. It is alleged that Thompson indorsed them to John H. Broadus, and Broadus to the plaintiff, both indorsements being before maturity, and for value.
The plaintiffs in error answered: 1st. A general denial of everything alleged in the petition; 2d, that they did not receive any consideration for the making of said notes, and that the defendant in error knew of such want of consideration at
Trial was had at the January term, 1887. The trial court held upon the pleadings, that the burden of proof was on the defendant in error, who introduced evidence tending to prove the following: 1st, that the payee in the notes sued on, to wit, John Thompson, indorsed his name on the notes, and that they were transferred by said indorsement to one J. H. Broadus, and that the latter, for a valuable consideration, transferred said notes before their maturity to the plaintiff; 2d, that Broadus took said notes without knowledge of any of the defenses set up in the defendants’ amended answer. Thereupon the plaintiff rested.
The defendants, to prove the issues upon their part, introduced evidence tending to show that the payee in the notes sued on, John Thompson, never indorsed said notes, and that the same were delivered to Broadus without the indorsement of the payee thereon; that at the time and place they were delivered to Broadus, he threatened the defendants that unless they made and delivered the notes sued on to him, he would cause proceedings to be taken to arrest one V. R. Woods, son-in-law of Joseph W. Calvin, one of the defendants, then in the state of Colorado, upon the alleged criminal charge of sell
We are now to inquire whether the record shows any evidence of the want of consideration in the original notes. This statement is made upon the theory that the notes sued upon are renewals of the original notes given for the patent right. This is not only denied by counsel for the defendant in error, but even if it were true, they claim in their brief that the makers of the notes sued upon cannot plead want of consideration in the original notes, and hence in these notes, because they are not privy to the contract under which the original notes were executed. To state their contention more definitely, it is that the makers of the renewal note, who are strangers to the original note, or to the contract by which it was executed, cannot defend against the renewal note by proving a total failure of consideration of the original note. This does not seem to be the law. The general rule, as laid down in the text by Daniel in his work on Negotiable Instruments, is, that if the1
While the test laid down in Daniel was not expressly mentioned in the case of Geiger v. Cook, 3 Watts & S. 266, yet in that case there was a renewal of the original note, and action brought on it, and the court say:
“If, however, the consideration of the note now sued on was nothing else than the former note, and the former note was void for want of consideration, this was the only mode in which the defendant could show that the present note was without consideration.”
This court, in the case of Fraker v. Cullum, 21 Kas. 551, say that—
“ Where a note is executed by an accommodation-maker, and is afterward without his consent or knowledge materially altered by an indorsee and holder thereof, such note is thereby rendered invalid; and afterward, where such maker, without having any knowledge of such alteration, executes new notes in lieu of the altered one, such new notes are given without any sufficient consideration therefor, and except in the hands of an innocent holder for value, their payment cannot be enforced against the maker.”
It is established, therefore, that in this state the condition upon which the defense can be made is want of knowledge of the illegality of the original note, when the renewal note is executed. Of course it must necessarily be that under certain circumstances the giving of a new note would preclude the party from denying the consideration of the old one, but we think that in this particular case evidence tending to show that there was no consideration for the original note, and hence none for the notes sued upon, ought to have been admitted. There
As there was some evidence introduced tending to show that the payee in the notes sued upon did not indorse them; and as there was some evidence introduced tending to show that Broadus had knowledge of the equities and defenses of the makers, and other evidence offered to show his knowledge, and that there was want of consideration for the original notes; and as the plaintiffs in error ought to have been permitted to introduce other and further evidence on that question; and as all these things were matters to be determined by the jury, the trial court erred in excluding the evidence, and in its direction to the jury; and for these errors we recommend that the judgment be reversed, and the cause remanded with instructions to grant a new trial.
By the Court: It is so ordered.