97 Kan. 562 | Kan. | 1916
The opinion of the court was delivered by
Appellant, who is a real-estate agent, sued to recover for services in procuring an exchange of properties. The petition contained two counts. The first alleged the performance of the services upon a written contract fixing the amount of the commission, and a copy of this contract and copies of other written acknowledgments of the amount due were attached as exhibits. The second count was on a promissory note given by Dodge and wife to' the plaintiff for $440 in part payment of the same indebtedness. The answer, in addition to a general denial, alleged a material alteration in the note subsequent to its execution; that when executed and delivered it contained no provision for the payment of interest, and subsequently the plaintiff had altered it by inserting an obligation that it should bear ten per cent interest per annum.
Appellees’ evidence tended to show that there had been a subsequent alteration of the note by inserting the figures “10” in the blank space provided for the rate of interest. Appellant’s evidence was directly to the contrary. The jury foufid that the note had been altered as appellees claimed, and returned a verdict in their favor. Appellant moved for judgment on the first count upon the undisputed facts and because the verdict was based solely upon the second count. This, motion and the motion for a new trial were overruled, and judgment was rendered in favor of appellees for costs.
It is urged by appellees that appellant abandoned his first cause of action, and by the statement of his counsel in answer to the court’s inquiry as to what was involved in the case is estopped to claim the right to recover on that part of his petition. We think otherwise. There was another claim or cause of action alleged in the petition against Chas. 0. Johnson, with whom the trade was made, and appellant sought to recover judgment against him, alleging that Johnson had agreed to deposit part of the purchase money in a certain bank, and that appellees had given appellant a written order on the bank to pay his commission out of these proceeds; that Johnson had wrongfully violated his agreement and was liable to appellant for the loss of his commission. This cause of action was abandoned at the trial.
The record does not bear out the claim that appellant in
■ “The taking of a note of either the debtor or a third person for a preexisting debt is not payment unless it is expressly agreed to accept such note as payment. Whether it was so taken is a question of fact, and the burden is on the party who asserts it to establish the fact by proof.”
In the case at bar there was no allegation that the alteration was fraudulently made, and there was a sharp conflict in the testimony as to whether it was made at all. That issue has been decided against appellant, but he is entitled to recover the consideration for which the note was given unless the appellees are able to sustain the further defense that by agreement of both parties the note was intended to extinguish the debt. All other issues have been determined. The court might have rendered judgment in appellant’s favor on the undisputed facts, or if satisfied that appellees were entitled under the circumstances to try the other issue, a new trial should have been granted.
. The judgment will be reversed and a new trial ordered upon that s'rgle issue.