57 Kan. 50 | Kan. | 1896
The opinion of the court was delivered by
This is a proceeding brought to reverse a judgment for $3,400.58, obtained by J. O. Blevins against J. M. Roberson and T. J. Roberson, partners as J. M. Roberson & Son, R. A. Yan Winkle, G. W. Roberson, Henry Schiffbauer, and J. L. Miller, administrator of the estate of G. W. Bowser, deceased. The action was based upon a promissory note for $2,000, dated February 8, 1883, in favor of William Blevins, who died intéstate on February 26, 1886. It. was due one year after date, and bore interest at the-rate of 12 per cent, per annum; and it is alleged that-it was executed by the judgment debtors above named.. Default was made in the payment of the note, and! after the death of William Blevins it was transferred to and taken by his son, J. G. Blevins, as his distributive share of his father’s estate. He began an action
The widow, administratrix, and children filed an answer disclaiming any interest in the note, alleging that the estate of William Blevins, deceased, had been finally settled, and the administratrix discharged. No defense was made by J. M. Roberson & Son, who were the principals upon the note; but the sureties defended, alleging that J. C. Blevins was not the real party in interest; that the note was signed in blank at the request of J. M. Roberson, with the understanding that the amount to be obtained upon it should not exceed $600 or $700 ; and that afterward it was filled out without authority for $2,000, with full knowledge on the part of William Blevins and his agent, J. C. Blevins, that the amount to be written in the note should not exceed $700. Another defense was that on April 14, 1886, J. M. Roberson, one of the principals upon the note, without the knowledge •or consent of the sureties, entered into a valid contract with Martha Blevins, administratrix of the ■estate of William Blevins, who was then the holder •of the note, whereby she agreed with Roberson to ex
“Now, if said party of the first part shall pay or cause to be paid to said party of the second part, her heirs or assigns, said sum of money in.the above-described note mentioned, together with interest thereon, on or before 28th of August, 1886, then'these presents shall be wholly discharged and void, and otherwise shall remain in full force and effect; but if said sum or sums of money, or any part thereof or any interest thereon, is not paid on or before August 28, 1886, . . . the whole of said sum or sums and interest thereon shall, and by these presents, become due and payable, and said party of the second part shall be entitled to the possession of said premises.”
In addition to that there is the testimony of J. M. Roberson, which tends to show that the understanding between Blevins and himself was that the time of payment of the note was extended from April to August; that Blevins pointed out to him the extension in the mortgage, and informed him that, if he did not sign the mortgage, his mother, who was administratrix of the estate, would bring an action at once. A part of his testimony is somewhat inconsistent with this view, but, all together, tends to show that the
The statutory limitation invoked by the plaintiffs in error does not, in our view, bar the action, nor do we think that any of the other errors assigned by them can be sustained.
The question of jurisdiction of the court was raised upon the ground of absence of parties ; but those parties, having disclaimed any interest, are not interested in the proceeding, and are not necessary to a review of the case.
For the errors mentioned, the judgment of the district court will be reversed, and the cause remanded for a new trial.