Gilbert v. Nelson

5 Kan. App. 528 | Kan. Ct. App. | 1897

Mahan, P. J.

This case was tried in the court below by both parties upon the theory that the note in question was negotiable paper and therefore governed by the laws relating to negotiable instruments, and the jury was so instructed. This was error. See the preceding case of Warren v. Gruwell.

The evidence is very clear and conclusive that the Nebraska company was the agent of the payee, Tail-man, and of his firm, Moore & Co., with authority from them to receive this money and forward it to Moore & Co., all of which they did. And it appearing that the payment .to the loan company by the defendants in error was made promptly at maturity, without any notice of the plaintiff’s rights in the premises, in absolute good faith, upon the request of the loan company, and the money having been sent by that company to Moore & Co., the real owners of the note at the time it was made, the payment in law was a complete satisfaction of the debt and mortgage. Warren v. Gruwell, supra. So that It becomes immaterial whether the evidence was sufficient to establish the fact of the agency of either Moore & Co. to receive payment for the plaintiff, or of the loan company to receive payment for the plaintiff. It was this misconception of the character of the paper in the hands of the plaintiff, that forms the ground for the plaintiff's first contention.

The second contention is likewise based upon this misconception of the character of the note in the hands of the plaintiff in error. The only complaint regarding the instructions given by the court is, that they did not correctly state the law with regard to agency as applied to commercial paper in the hands of an innocent indorsee for value. In view of the fact that the decision of the case does not involve any question of commercial paper in the hands of an indorsee, or the law of agency with respect to such paper, these instructions become immaterial. While it is possible that they do not, in every respect, state the law correctly, as abstract propositions, yet such erroneous declaration of the law could not in any manner prejudice the rights of the plaintiff in error. Some reference is made in the brief of counsel for the plaintiff in error to the refusal of the court to give certain instructions asked for by the plaintiff, but as this is in no manner assigned as error we do not deem it necessary to consider it. It is sufficient to say that all the instructions asked by the plaintiff, which wei*e refused by the court, were likewise based upon the proposition that this paper was commercial paper, negotiable in the hands of the plaintiff in error — expressly assuming that to be the fact. Hence, there was no error in refusing them.

Upon the undisputed evidence in the case, to the effect that the defendants in error paid this note and mortgage to the loan company without any knowledge of the plaintiff’s claim with respect thereto, and that the loan company was the conceded agent of Moore <fc Co., the real payee of the note, and expressly authorized by said company to collect the same, the jury' could have reached no other conclusion than the one they did reach in their general verdict.

-There is a serious question whether the verification is sufficient under the statute to put the burden of proof of agency upon the defendants in th^ case, but inasmuch as we find that it is not necessary to determine this question in order to decide the case we will express no opinion on it. The judgment must be affirmed.