27 Kan. 172 | Kan. | 1882
The opinion of the court was delivered by
After the decision of this court in this case, reported in 24 Kas. 497, a second amended petition was filed, in which it was alleged among other matters, that the note and judgment are, and always have been, the property of A. H. Hentig; and that said A. H. Hentig is now, and always has been since the rendition of said judgment, a nonresident of the state of Kansas, and out of and' beyond the limits of the state of Kansas, and a resident of the state of Michigan, and has never been in the state since the rendition of said judgment. After an answer to such amended petition had been filed, and a reply to such answer had been made, the case was disposed of by the trial court without the intervention of a jury. Judgment was rendered in favor of the plaintiff, decreeing a perpetual injunction to stay the further collection of the judgment. Plaintiffs in error (defendants below) excepted, and bring the ease here. When the case was before us at the former hearing, the defendants pleaded the statute of limitations as the single barrier to plaintiff’s right to relief. The petition then before us alleged that the plaintiff was an accommodation indorser upon a note executed to A. H. Hentig, but which in fact belonged to his brother, a resident of Kansas. We then held,-that as' the action was one for relief on the ground of fraud, and that as plaintiff did
Now, under the facts disclosed in this case, assuming the general findings of the court to be conclusive — and we are bound by such findings, as the judge of the district court was the trier of the facts, and had the witnesses before him — it was shown to be against conscience to allow the judgment to be collected to the full amount of the face. Several hundred dollars had been paid after the commencement of the action on the note, and A. H. Hentig had promised, pending the suit, to credit the payments upon the claim, and to take judgment for only the balance. We say A. H. Hentig had done these things, because in law he is bound by the acts and conduct of his attorney and agent when he attempts to enforce a judgment thus obtained. The injured party has shown that the reason he did not go into court and set up such payments
The judgment of the district court will be affirmed.