72 P.2d 966 | Kan. | 1937
The opinion of the court was delivered by
This was an action by an administrator to recover on behalf of the estate of Clara Kallail, deceased, a judgment against defendant for money had and received from deceased during her lifetime. The action was originally instituted in the city court of Wichita, where plaintiff prevailed. Defendant appealed to the district court, where the result was the same. From the latter he appeals.
Defendant contends the trial court erred in: (1) overruling his demurrer to plaintiff’s evidence; (2) giving certain instructions; (3) refusing to set aside the verdict and special findings; (4) refusing to grant a new trial. .
Touching first the overruling of the demurrer, we shall examine the record in order to ascertain whether plaintiff’s evidence showed that defendant had borrowed $800, the amount in question, from the deceased, and if so, whether the evidence further showed it had not been paid. Defendant contends plaintiff’s evidence disclosed the debt was evidenced by a note and that the note was paid during the lifetime of the deceased. This was not a suit on a note, but for money had and received. Clara Kallail, the alleged loaner of the money, was, of course, not available as a witness. It appears plaintiff was obliged to rely upon the defendant for direct evidence as to the making of the loan by the deceased. He called defendant as his own witness to establish only the fact that the indebtedness to the deceased had been incurred. He did not interrogate defendant concerning payment, as payment was strictly a matter of defense. The trial court, however, permitted defendant, on cross-examination, over plaintiff’s objection, to testify concerning payment. Defendant testified the debt was represented by a note, that he had paid it, and the note was admitted in evidence on his cross-examination over plaintiff’s objection. The court, however, later righted itself by
The loan to defendant in the sum of $800 was clearly established. Defendant claimed he had paid the sum to deceased in currency of denominations of five dollars and higher. On March 18 and 19 defendant had on deposit in his own personal account with his bank the respective sums of $3,356.57 and $1,641.50. The deposit was in the name of the F. R. Solomon Candy Company, of which he was the sole owner. Plaintiff’s evidence disclosed no such sum of money was found in deceased’s possession or among any of her valuable papers or belongings. In view of all the competent evidence and reasonable inferences which might be drawn therefrom, the evidence was amply sufficient to take the case to the jury on the question of payment, and hence the demurrer was properly overruled.
We turn next to the objection to instructions. The complaint is they placed the burden of proof of payment of the note on defendant. That the general rule places the burden of such payment on defendant is conceded. Defendant, however, insists the fact the note was in his possession shifted the burden to plaintiff to show it was not paid. If such were the rule where possession of a note is in the maker before maturity, as it was in the instant case, there was ample evidence to support the finding it was not paid. Such, however, is not the rule. In 8 C. J., Bills and Notes, § 1319, the rule is stated thus:
“Payment of a bill or a note 'will be presumed from possession, after ma- ’ turity, by the maker or acceptor, or by a surety; and if a note is found among the maker’s papers after his death it will be presumed to have been paid. Payment will not be inferred, however, from possession by the maker or the acceptor before maturity; from possession by the maker as administrator or agent of the holder; or where the possession was obtained by the unauthorized act of the holder’s agent, or it does not appear that the note was ever delivered to the payee, or the bill put into circulation.”
“A presumption of payment from possession by the obligor does not arise in the case of a negotiable instrument before due; but, on the contrary, in such case it is a matter of legal presumption that the bill or note is unsatisfied, and that it was endorsed and placed in the hands of the maker for his accommodation.” (See, also, Dencer v. Jory, 131 Ore. 653, 284 Pac. 163, 70 A. L. R. 855, and annotation; Hollon v. Weatherford’s Administrator, 259 Ky. 142, 82 S. W. 2d 208, 211.)
There was no error in the instructions, and in view of what has been previously said concerning other specifications of error, the motion for a new trial was properly overruled.
The judgment must be affirmed. It is so ordered.