100 P. 504 | Kan. | 1909
The opinion of the court was delivered by
H. T. Leeman, C. F. Prehm and John Page were sureties for W. L. Harper upon a bond. A liability accrued thereon which they were required to pay. To indemnify them Harper assigned to Leeman for their benefit some notes and accounts, any amount realized thereon beyond what was necessary for that purpose to be réturned to him. Among these notes were several given by one M. L. Hardin, for the aggregate amount of about $1000. Leeman put these notes in judgment in a Missouri court, caused execution to
Findings of fact were made in full detail. Although many of them are vigorously attacked, we conclude they were all supported by direct evidence or by inferences reasonably to be drawn from the circumstances shown, with one exception, to be noted later. Only two of the propositions argued seem to involve debatable questions of law or to require special discussion. One relates to the amount with which Leeman and Prehm should be charged as the selling price for the town lot; the other to the amount with which they should be credited in connection with the purchase of the trust deed and the proceedings under it.
When they sold the lot they executed a deed reciting a consideration of $5300. They admit receiving $3500, and that is conceded to have been all that was paid in cash. There was evidence, however, tending to show that in addition to this the purchasers gave a quarter-section of land and a patent right, and that the deed was not made directly to the real purchaser, but at his request to an intermediary—the Wisby Realty Com
The other question which has already been spoken of as debatable seems properly resolvable in favor of the plaintiffs in -error. Having acquired a sheriff’s deed to Leeman under the execution sale, they bought the outstanding note secured by a trust deed on the property, paying $1500 for it. They then bought it in for $500, which was of course credited on the Hardin note. The trial court credited them with but $500 on this transaction, because, although they had paid out $1500 in cash, they still had the note against Hardin, on which $1000 remained unpaid, and which* was found without direct evidence on the subject to be worth that amount. Inasmuch as they did not conclusively establish that this balance was uncollectable there might seem to be
The question whether this charge should be made, however, is entirely separate and distinct from any other part of the controversy, and the ruling of the trial court may be changed in this respect without affecting any other part of the judgment. In this situation it is unnecessary to disturb the results of the litigation so far as they are unaffected by the ruling referred to. The judgment rendered will be modified to the extent only of reopening the question whether Leeman and Prehm should be charged with the unpaid balance of the 1500-dollar note. The cause is remanded with directions that if within a time to be fixed by the district court they shall assign and deliver this note to Harper the judgment against them shall be diminished by the amount of the $1000 and interest with which they were charged on account of their having retained it; if the note is not so assigned, the court to reexamine the question as to what charge should be made against them on that account, and render judgment accordingly. The costs in this court will be divided.