Farmer v. Marvin

65 P. 221 | Kan. | 1901

The opinion of the court was delivered by

Pollock, J.:

The sole question for our determinaupon this record is, Does the promissory note in question constitute a valid demand against the estate of the deceased ?

Leroy Neale, the attorney, was the agent of the deceased for the purpose of making the deposit of papers in the bank, and for the purpose of instructing the bank as to the disposition of the same. There his agency terminated.. The bank was the agent of both plaintiff in error and deceased. The scope of this agency was distinctly defined and limited by the written, instructions delivered to the bank. Upon the happening of either of two contingencies — the presentation of the original papers made by D. C. Marvin, properly released, or the presentation of indemnity agreed on by both parties — the promissory note in question was to be delivered to plaintiff in error. Before the happening of either contingency, H. C. Marvin died.

The claim made against the estate is founded upon this promissory note. Before the note would become the binding obligation of the deceased, or against his estate, there must have been made a valid delivery. It is conceded such delivery was not made. The bank had no interest in the transaction except to carry out the written instructions of the parties as an accommodation. It is elementary that an agency not coupled with an interest in the subject-matter of the agency is revoked by the death of the principal. In this case the bank had no power to deliver the note after the death of H. O. Marvin, even in the event of the happening of the condition upon which delivery was contingent. Nor did the executors have the right or power to accept the indemnifying bond and make that a valid claim against the estate which was not such when the estate came into their hands, by delivery of the promissory note.

What the nature and character of the indemnity to be agreed upon by both parties, in the event of the failure to find the mislaid note and mortgage, would have been is not ascertained, and, from the very nature of the case, after the death of both H. C. Marvin and his agent, Leroy Neale, is incapable of ascertainment. However, in view of the fact that the debt for which H. C. Marvin was substituting his personal obligation was the debt of another — not his own, and in view of the further fact that no consideration for the making of the note in question moved to H. C. Marvin, it was his legal right, and the right of his representative, to stand on the strict terms of his agreement and refuse delivery until its conditions were performed. (Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174.)

It follows that the judgment must be affirmed.

Dosteb, C. J., Smith, J., concurring.