60 Kan. 60 | Kan. | 1898
The opinion of the court was delivered by
On August 2, 1886, I. P.'Campbell and his wife executed a principal note for $5000, pay
On application the Robinson Female Seminary was made a party, and in its answer and cross-petition alleged that it was the owner of the $5000 note, which was indorsed and transferred to it by the Davidson Loan Company before the maturity thereof or any of the interest thereon, in the due course of business and for a valuable consideration. After averring the incorporation and authority of the Davidson Loan Company, the following averment was made : “That said Davidson Investment Company is a reorganization of and a successor to the said Davidson Loan Company, and as such it succeeded to and became the owner of the entire assets of the said Davidson Loan Company, and as such had at all times mentioned herein full power and authority to act for and transact any business of the said Davidson Loan Company.” It was
It also averred that it was the owner and holder of the mortgage and that the conditions therein had been broken and had become absolute. Other parties were named as defendants, who, it was alleged, claimed an interest in the mortgaged premises, but which interest, if any, was inferior to the mortgage liens.
A joint answer was filed by I. P. Campbell and wife which contained a general denial, a specific denial that they were indébted to plaintiff, or that plaintiff was the owner of the $500 note sued upon, and also alleging usury and want of consideration. They demurred to the cross-petition of the Robinson Female Seminary for the reason that it did not state facts sufficient to constitute a cause of action, but this demurrer was overruled. Then they answered, setting forth a general denial, and alleging that the cross-petitioner was not the owner and holder of the note and mortgage, and that the same had not been legally transferred and assigned. It was also alleged that the indebtedness had been fully paid. When the cause came on for trial objection was made to the introduction of evidence for the reason that the petition of the Davidson Investment Company and the answer and cross-petition of the Robinson Female Seminary did not state facts sufficient to constitute a cause of action in favor of the respective parties. The objections were sustained, and the jury was discharged.
The rulings of the court sustaining objections to the admission of testimony because of insufficient facts in the petition and cross-petition are erroneous. The court had already overruled a demurrer to the pleadings challenging the sufficiency of the facts alleged, and a pleading is construed much more liberally upon an objection to the introduction of evidence than upon a demurrer. The objection to the petition of the Davidson Investment Company appears to have been sustained because the note was payable to the order of the Davidson Loan Company, and that without indorsement it could not be sued upon by the Davidson Investment Company. Aside from the averment in the petition, that one company is the successor of the other, there is a specific averment that the company
The objection to the cross-petition of the Robinson Female Seminary appears to have been sustained because the note held by it was indorsed to it by the Davidson Loan Company, while the indorsement on the mortgage was by the Davidson Investment Company. It appears that the transfer of the note was made before the indorsement of the mortgage, and possibly the reorganization and change of name occurred in the interim. The fact that the assignment was written on the mortgage at a time later than the indorsement of the note, and by the successor of the payee of the note, is unimportant. The assignment of the note operated as an assignment of the mortgage made to secure the note, and the assignment of the mortgage was therefore unnecessary under the statute