2 Kan. App. 550 | Kan. Ct. App. | 1896
This action was brought by A. J. Ream against R. Sauvain, as principal, and Benjamin Gus-tin and Ellen Gustin, as sureties, on a note executed by the defendants to the plaintiff under date of November 23,1889, for the sum of $258.92. The defendants, in defense, alleged that the only consideration for the note was the illegal promise of Ream to desist from the further prosecution of a criminal case which he had instituted against Sauvain before a justice of the peace of Smith county on a charge of embezzlement. Trial was had before the court without a jury, and a general finding made by the court in favor of the defendants, upon which judgment was rendered.
The evidence shows that, for some months prior to the date when the note was given, Sauvain was in the employ of Ream and in charge of his harness shop in said county; that on November 20, 1889, Ream made complaint, under oath, before one H. H. Reed, a justice of the peace of said county, charging the said Sauvain with unlawfully and feloniously embezzling certain goods and money, of the value of $200, the property of the complaining witness ; that on such complaint Sauvain was arrested, and gave his recognizance for his appearance before said justice on November 25, for a preliminary examination ; that after his arrest and prior to November 25, negotiations ■were had between Ream and Sauvain for a settlement of their differences, which resulted in the execution of the note in question and the dismissal of the criminal prosecution. Upon the trial of this case, the principal controversy was as to the consideration of the note, the plaintiff contending that the sole consideration was the settlement of Sauvain's civil liability for the
“ I won’t prosecute this case any further. I will see that the costs are paid and release you. . . . There is only two things you can do — you can sign that note, or I will send Rud (meaning Sauvain) over the road. . He said that he would dismiss the case and see that the costs were paid, and he would prosecute it no further. ... If you do n’t do that, I will send him to the penitentiary in spite of h — 1 and d — n.”
Benjamin G-ustin further testified :
“I says, ‘Jack [meaning Ream], I don’t like to sign this note at all,’ and I says, ‘I would not do it under no other consideration whatever, only to save Rud, as you say — to save him from going to the penitentiary.’ . . . My understanding all the time was, that that was to stop this criminal suit by the signature of myself and Andy, or my wife, on that note, and for no other reason.”
The plaintiff’s testimony was equally positive that he only demanded the note as payment and settlement of the actual losses sustained by him by reason of the wrongful appropriation of his property by Sauvain. Upon this conflicting testimony, the court found in favor of the contention of the defendants, and that the note was, consequently, void. This finding and conclusion were sustained by the evidence.
The judgment is affirmed.