44 Kan. 151 | Kan. | 1890
The opinion of the court was delivered by
This was an action on a promissory note for $1,000, made and dated December 25, 1872, by John B. Easter and A. C. Easter, payable to Mary Ann Easter one day after date, with interest at 6 per cent, per annum. When the action was brought in December, 1886, the following indorsements were upon the back of the note:
“Paid on the within note $5, Sept. 14, 1884; paid on the within note $5, Dec. 14, 1884; paid on the within note $88, Feb. 19, 1886.”
John B. Easter died in December, 1885, and in the following year the note was exhibited in the probate court as a demand against his estate, after notice to Anna N. Easter, who
The ruling of the court in withdrawing the indorsements was right. The controversy between the parties was, whether the payor of the note had by a payment acknowledged the existence of the debt; and the indorsements written on the back of the note by the payee were offered in evidence to establish that fact. They did not constitute any evidence of payment as against the payor of the note. They were not made until more than thirteen years after a cause of action had accrued, nor until after the death of the payor. They were therefore ex parte statements of the payee, favorable to her own interests, and upon well-settled rules were not admissible as evidence in her behalf. If they had been written by the payee before the lapse of five years, they might have been treated as declarations against her own interest, and on that ground might have been received as evidence in her favor.
After the court had stated the issue which had been formed between the parties, it instructed the jury “that the burden of proof rests upon the plaintiff, and to entitle her to recover in this suit she must prove by the preponderance of the evidence that John B. Easter executed the note sued on, and that the payments alleged to have been made upon said note were in fact made by said John B. Easter in his lifetime, and were by him intended when made to be applied upon said note.” The plaintiff contends that the evidence established that money was paid by John B. Easter to Anna N. Easter, and that the money so paid must be regarded either as payments upon the note, or gifts; and that the presumption is that it was a payment rather than a gift, and that the burden of showing that the sums were not gifts devolved upon the defendant. The defendant had filed a verified denial that the payments were made as alleged by the plaintiff, and it was a controverted question on the trial whether any money was paid upon the note upon which the action was brought. Under the issues framed between the parties it was not enough to show that there had been money transactions between the plaintiff and John B. Easter during his lifetime, but the burden was upon the plaintiff to show that they related to, and that any payments of money made were made upon, the identical debt upon which suit has been brought. If an additional instruction was desired by the plaintiff' in regard to the presumptions as between gifts and payments under a given state of facts, it should have been requested; but no such request was made,
There is nothing substantial in the claim that the motion for a new trial should have been granted on the ground of the misconduct of the defendant’s attorneys.
Finding no error in the record, the judgment of the district court will be affirmed.