50 Kan. 725 | Kan. | 1893
The opinion of the court was delivered by
The Phcenix Insurance Company of Hartford, Conn., brought this action to recover on a promissory note executed by Thomas D. Kerns and wife in favor of James H. Tallman for $250, and the interest thereon, and also to foreclose a mortgage given by them to secure the same on a house and lot in Howard. The note and mortgage were assigned to the insurance company, and default having been made in the payment, this action was brought against the makers and also against William Dolan, who had purchased
The evidence was wholly insufficient to warrant the ruling of the court or the verdict that the jury were instructed to return. If a liability had arisen against the company on the policy, and it had passed to Dolan he is entitled to a credit of the amount of the loss on the mortgage debt which he assumed. The burden, however, was upon him to show that a loss had occurred and a liability had arisen of which he might avail himself in this action, before any credit could be given. He failed to show that the property had been destroyed, and, if there was any loss, that proofs had been made and steps taken by him to entitle him to any amount of the