40 Kan. 507 | Kan. | 1889
Opinion by
This action was brought upon a bond and mortgage by the defendant in error, as executrix of the last will and testament of Appolonia Guttermann, deceased. The petition shows that on the 14th day of January, 1880, Daniel Guttermann, the plaintiff in error, executed to his mother, Appolonia Guttermann, a bond with a mortgage to secure the payment of the same, by which he promised to pay her $200 on the first day of December, 1881, and $200 each year thereafter during her lifetime, in consideration of her releasing her dower in certain lands sold by him to one Miller, being the lands owned by the husband of Appolonia Gutterman, and father of the plaintiff in error. The petition alleged that at the death of Appolonia Guttermann there was due from the plaintiff in error the sum of $345 and interest.
Defendant insists that before the plaintiff could recover she must show that there had been a default made in payment on said bond and mortgage, and as no proof of this character was made, that the plaintiff had proved no cause of action against him. This would ordinarily be true. A plaintiff, except upon commercial paper, must prove a breach of the covenant, but where a defendant in his answer alleges payment of the claim, it is not necessary that the plaintiff should prove a breach, but the burden rests upon him who alleges the payment, and in this instance the burden was upon the defendant to prove the payment, and not upon the plaintiff to prove the breach of covenant.
The defendant then offered in evidence the judgment, regular in form, rendered by the circuit court of St. Clair county, Illinois, in favor of the plaintiff and against the defendant,
“You may state what reference, if any, the rental spoken of in the suit brought in the St. Clair county, Illinois, circuit court has to the rental or moneys mentioned in the mortgage sued on herein.
“You may state if the moneys sued on herein have ever been the subject of litigation between you and the plaintiff herein, and if so, in what court.
“ You may state whether or not the moneys sued on herein are the same referred to in the record in the said circuit court as rental due.”
Each of these questions was objected to by the plaintiff as being irrelevant and immaterial, and the refusal of the court to permit the defendant to answer these questions is the second ground of error. The record introduced by the defendant shows upon its face that the claim for $300, which he seeks to explain by his oral testimony, was for rent and income from lands, while the claim sued on herein was for the relinquishment of dower by Appolonia Guttermann to a particular tract of land. To hold this testimony offered by the defendant competent, the court must have been able to say that the record upon its face did not show that these claims were separate and independent of each other; for if the record does not show that fact, then the court was correct in sustaining the objection to these three questions asked the defendant. We think that the record clearly shows that these claims are
Again, the record shows that the action in the circuit court of Illinois was one in assumpsit. Now this court may perhaps take notice of the fact that these pleadings were filed in a court as a proceeding under the common law. At any event, the form of the pleadings would indicate that that was the form of procedure in that state. If this be true, then the very fact that the action was one in assumpsit precludes the including of the claim sued on in this action. The items included in that action were properly included in that kind of an action: the note sued on for $400; the money loaned on open account, and for rent and income from lands, $300. This was all proper in an action in assumpsit. But this action is one, if brought where the common law prevails, of covenant; being a contract under seal, it could not be included in the declaration in asswmpsit.
We are therefore of the opinion that the trial court properly excluded the evidence, and we recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.