31 Kan. 447 | Kan. | 1884
The note sued on, which was non-negotiable, was executed by John McCreary, one of the plaintiffs in error, to the firm of Holland, Frear & Wilson, for certain territory covered by the Frear stone patent and the right to make, use and sell therein material manufactured under the patent. The defenses relied upon to defeat the recovery upon the note were, fraud and deceit upon the part of the payees in inducing the contract concerning which the note was given, and therefore failure of consideration. The note was executed May 7, 1870, for $700, bearing interest at 10 per cent, per annum from date, and payable on or before January 7, 1871. It was established upon the trial that, in 1871, Holland, Frear & Wilson sold and transferred, by indorsement, the note to Garland, Holmes & Co.; that not long after, the latter firm sold the note to John R. Parsons; that he died July 2, 1879; that the defendant in error, Caroline M. Parsons, was his duly-appointed executrix; that on April 25, •1871, a payment was made upon the note by McCreary, of $200; that on May 10, 1876, another payment of $200 was made by him upon the note; that on July 6, 1874, he wrote to Garland, Holmes & Co., in answer to a letter that they had about decided to foreclose the mortgage, (given to secure the note,) among 'other, things, as follows: “ It would be a very serious matter to me if you would sue for a foreclosure, and I hope you will not at present, for I think I can assure you of my ability and willingness to pay just so soon as I can collect or make sale of some property. Times are very hard, but I hope they may be better. So soon as I can get anything from the east, or otherwise, I shall remit;” that this letter came into the hands of John R. Parsons; that he wrote to McCreary concerning the note on December 16, 1874; that in answer, McCreary replied in writing: “I will pay part sometime this spring. Our farming interests have failed so for the last two years that the country is badly crippled. We are hoping that times may get better. I have
In seeking to prove his defense, McCreary, upon the trial,, sought to introduce the representations made to him by the members of the firm of Holland, Frear & Wilson regarding-the novelty, utility and value of the Frear stone patent, and the material manufactured under the patent; that the patent: right and the material of the patent were worthless, and wanting in utility, novelty, and value; also that the material-manufactured under the patent was unsafe and dangerous.. It was not shown, or attempted' to be shown, that after the-writing of the various letters by McCreary, which were read in evidence, any new or additional information had reached him in regard to the novelty, utility and value of the patent, right, or of the materials manufactured thereunder. The-court refused the evidence offered, and instructed the jury that the only matter for them to determine was the amount, of interest due upon the promissory note, and to bring a. verdict for the plaintiff for the amount found due, including; principal and interest. In all of these rulings no material-error was committed.
This action was brought about four months after the letter of June 6, 1882, was written. Up to that time McCreary had never claimed or intimated that any fraud or deceit had* been practiced upon him concerning the sale of the patent-right for which the note was given, nor had he ever attempted in any manner to disaffirm the contract. For over twelve-years after he executed the note, he had not only made no objection to the patent right purchased by him or to the material manufactured thereunder, but on the other hand, after having had full opportunity of judging of the character of
It appears that the letter of July 6, 1874, although written to Garland, Holmes & Co., must have been turned over to John R. Parsons, as it was subsequently found among his effects; and he appears to have written to McCreary on the 16th of December, 1874, concerning the note. Parsons had the right to rely upon the promises of McCreary, which were continuously made to him up to his death, on July 2, 1879; and relying upon such promises, he had the right to suppose the note he had purchased was valid in all yespeets, and not tainted with fraud or deceit.
The suggestion that the plaintiff below could not avail himself of the plea of estoppel because the facts constituting such plea were not set up in his reply, is without force, as it was alleged in the petition that on the 30th day- of October, 1879, the 27th day of May, 1882, and the 6th day of June, 1882, McCreary, in writing signed by him, acknowledged
The ground of estoppel was so clearly established, and so conclusive, it was useless to send the case to the jury for anything but a computation of the amount due on the note.
With these conclusions, it is unnecessary to refer to the other questions submitted to us. The judgment of the district court will be affirmed.