McWhirt v. Mckee
6 Kan. 412
Kan.
1870
Check Treatment

The opinion of the court was delivered by

Eingman, O. J.:

Thе testimony showed that McWhirt received Bray’s note for collection; that he paid nothing for it, but did promise to account for and pay over the prоceeds when collected; that the amount thereof was allowed him оn the trial of his suit with Bray, whereby he obtained the full benefit of the value of the note, and that he had paid over nothing, and that Carney & Stevens knew nothing of McWhirt’s suit agаinst Bray during its pendency, nor till long after ‍‌​‌‌​‌​​​​‌​‌​​​​‌‌​​​​‌‌‌‌​‌​​‌​​​‌‌​‌​​‌‌​‌‌​‌‍it was decided; and that the note was regularly assigned to McWhirt for collection only.

1. costeactparo/evfd'eñce. I. It is insisted by plaintiff in error that it is inconsistent with the assignment of the note to permit oral evidence to be given that the assignment was only made for the purpose of collection; and in the argument and brief much learning and diligence is shown in the collection of authorities еstablishing the law that *418oral testimony will not be received to contradict a written contract. We do not propose a review of these authoritiеs, for in the view we take of this case they are not instructive. The oral testimony does not contradict the assignment; does not vary it; does not even explain it. The contract was outside of the assignment, and was parol in its character, ‍‌​‌‌​‌​​​​‌​‌​​​​‌‌​​​​‌‌‌‌​‌​​‌​​​‌‌​‌​​‌‌​‌‌​‌‍and therefore could be proven by oral testimony. The contract was, that MeWhirt was to take the note, collect it, and when colleсted, pay it over; and all this was in parol. The “ assignment” formed no part of thе contract, and was only made to assist MeWhirt in the performance of the obligation he took upon himself by reason of the contract.

2. Party ¡¡able for S“g?a“camoí of oi&nai'llty fouse. II. Another question raised by the plaintiff in error is, that if the note was assigned only for the purpose of collection, then Carney & Stevens have a risrht to a make the amount of the note off of Bray. When such a question arises we shall have ‍‌​‌‌​‌​​​​‌​‌​​​​‌‌​​​​‌‌‌‌​‌​​‌​​​‌‌​‌​​‌‌​‌‌​‌‍no diffiсulty in deciding it; but in this case it is not presented. MeWhirt chose to consider the notе as his own, and so treated it. It was used to pay his own debt. lie therefore is not in a рosition to raise the question. By his use of the note he made himself liable to Cаrney & Stevens for the money, and it is no matter to him ‍‌​‌‌​‌​​​​‌​‌​​​​‌‌​​​​‌‌‌‌​‌​​‌​​​‌‌​‌​​‌‌​‌‌​‌‍whether Bray is also liable or not. It was his liability that the court was trying, not Bray’s. The proceeds of the note pаid his debt to Bray. Why should not he account to Carney & Stevens for the money, as well under such circumstances, as if he had collected the note from Bray and used ‍‌​‌‌​‌​​​​‌​‌​​​​‌‌​​​​‌‌‌‌​‌​​‌​​​‌‌​‌​​‌‌​‌‌​‌‍it to pay some other debt ? We cannot see wherein his liability is different in thе one case from the other.

*419s. statute op saviug^oiauaes. III. One of the grounds of defense is the statute of limitations. "We think the law on this point was as favorably presented to the jury for the plaintiir in error, as a fair construction of our statutes would authorize. The facts of the case show the commencement and dismissal of two actiоns for the same cause, before the commencement of the prеsent action. It will be seen that the action accrued in favor of Carney & Stevens against MeWhirt, April 10, 1866, and that such action was barred unless it comes within the sаving clauses of section 23 of the civil code. On this point it is claimed that a voluntary dismissal without prejudice, is not such a “ failure in the action’-’ as is contemplated by the section referred to; but we cannot see upon what grounds-wе can give such a construction to the section without doing violence- tо its language and its obvious intent. Where a plaintiff dismisses his action he “ fails in such action,” and the failure .is “ otherwise than upon the merits.” It is not necessary to inquire whаt caused the failure in the action — why it was dismissed. It is sufficient that he failed to obtаin the object of his suit, and that his failure was not upon the merits. It is such cases as are intended to be saved by the section. Nor do any of the authorities refеrred to by the plaintiff in error authorize any other construction than we have given to it. The instructions of the court below having been in accordance with the views herein indicated were correct, and the judgment is affirmed.

All the Justices concurring.