Peru Plow & Wheel Co. v. Ward, 6 Kan. App. 289

Peru Plow & Wheel Co. v. Ward

6 Kan. App. 289 | Kan. Ct. App. | 1897

Mahan, P. J.

The plaintiff’s brief contains no formal assignments of error, but in lieu thereof propounds four questions :

I. Does the clause in the mortgage so change the terms of the contract as to release R. B. Ward? There is but one answer to this question. The modification of the contract was such as would necessarily discharge the surety if made without his knowledge or consent. This question, however, was adjudicated in the former suit and that is conclusive upon the parties. It is admitted that this note was one of a series of three, signed at the same time, by the same parties, to the plaintiff, to secure one item of indebtedness theretofore existing and made payable under the .terms of the *293notes in three instalments, and all secured by the same mortgage. Any vice that inhered in one note inhered in the others equally. If the defendant was released from one he was released from all, because the contract by which the obligation was changed affected all alike. The same question presented in this case was litigated in the former case, between the same parties, respecting the same subject-matter.

II. Did R. B. Ward consent to or ratify the mortgage, or, is the judgment contrary to the evidence? The finding of the court is conclusive upon this question ; that is, that the mortgage was taken without the knowledge or consent of the surety, and that by reason thereof he was discharged. This question w'as likewise determined by the former adjudication.

III. Is the second note barred by the Statute of Limitations? The trial court was correct. There can be no two sides to this question. An affirmative answer is imperative. Nearly six years had elapsed after the maturity of the note, and the defendant R. B. Ward had not recognized his obligation thereon in any way. He denied the obligation ; he had not made any payment nor authorized any to be made for him. There is no act asserted that would have the effect of taking the note out of the operation of the statute.

IY. Are the matters finally adjudicated by the decision on the first note ? This question must likewise be answered in the affirmative. It is not necessary to cite any authorities on this proposition. However, the case of Hoisington, Sheriff, v. Brakey (31 Kan. 560), it seems to us, is conclusive upon this question. See also Beloit v. Morgan, 7 Wall. 619.

In the last case Morgan sought to recover on certain bonds of the city of Beloit. The city filed a bill *294upon the chancery side of the Circuit Court of the United States for the District of Wisconsin, to enjoin the proceedings at law and compel the surrender of the bonds. Morgan pleaded, by way of estoppel, a prior judgment on certain of the same series of bonds as conclusive of the validity of the whole issue. The court in its opinion, by Mr. Justice Swayne, says :

“On the ninth of January, 1861, the appellee recovered a judgment at law against the appellant upon another portion of these securities — though not the same with those in question in this case. The parties were identical, and the title involved was the same. All the objections taken in this case might have been taken in that. The judgment of the court could have been invoked upon each of them, and if it were adverse to the appellant, he might have brought the decision here by a writ of error for review. The court had full jurisdiction over the parties and the subject. Under such circumstances, a judgment is conclusive, not only as to the res of that case, but as to all further litigation between same parties touching the same subject-matter, though the res itself may be different,”

The judgment is without doubt a just one and is fully sustained by. principle and authority.

Judgment afffrméd.