Shaffer v. Hohenschild

2 Kan. App. 516 | Kan. Ct. App. | 1896

The opinion of the court was delivered by

Gilkeson, P. J. :

The errors assigned in this action are: “(1) The court erred in sustaining the petition in error of said H. Hohenschild, plaintiff in error, in said court; (2) the court erred in rendering judgment for said Hohenschild, plaintiff in error, in said court; (3) the court erred in not rendering judgment for the said W. H. Shaffer, ¥m. Hogben, and A. W. Krause, defendants in error, in said court.” Defendant in error contends that the errors complained of in this action are not reviewable in this court. We cannot agree with counsel on this proposition. When an error is apparent by an examination of the pleadings and judgment, such an error can be reviewed in this court. (Stapleton v. Orr, 43 Kan. 170.) Where the district court, on a petition in error from a justice of the peace, reverses the judgment of the justice, it is not necessary for the aggrieved party to file a motion for a new trial in order to have the decision of the district court reviewed on petition in error. (Lyons v. Osborn, 45 Kan. 650.) If the record shows the final judgment to be erroneous, it is reviewable in an appellate court without exception. (Koehler v. Ball, 2 Kan. 160; Wilson v. Fuller, 9 id. 176.) We think this case is properly here for review.

Did the trial court err in sustaining the petition in error, and in rendering judgment for Hohenschild, plaintiff in error? This we must answer in the affirmative. The only question presented to the district court upon the petition in error was, Did the justice of the peace err in admitting testimony? The testimony admitted by the justice of the peace over the objection of plaintiff in that court shows that this note was given to Abbott & Hohensehild for a balance due them for their services as architects for making plans, etc., for the Knights of Pythias building, the property of Cydon Lodge No. 5, K. P., Salina, Kan ; that it was not a personal note of the signers, but was the note of the said lodge; that they signed it in their official capacity as trustees of said lodge ; that this was known to the' payee Abbott, and that it was intended and understood at the time it was made to be the note of the lodge ; that said Abbott was present as a member of said lodge at the meeting when the defendants, as trustees, were directed to make this note; that said Abbott wrote the note, including the words ‘Trustees of Cydon Lodge No. 5, K. P. Salina, Kan.,” and was present when it was executed and delivered.

In Kline v. Bank of Tescott, 50 Kan. 91, where the parties wrote their names on the back of the note as “Board of Directors,” Chief Justice Horton, in delivering the opinion of the court, said :

“If the parties who wrote their names upon the back of the note as directors had signed their names upon the face thereof, they could have shown by extrinsic'evidence that they were acting for the corporation only.”

If it is not clear from the face of the note whether the signers contracted on behalf of the association, or for themselves, then, as between the original parties, extrinsic evidence may be introduced to show that in fact it was the intention of all the parties, at the time of the execution of the note and its acceptance, to bind the association only, and not to make the signers liable personally. (Benham v. Smith, 53 Kan. 495.)

• “ Considerable diversity of decision, it must be admitted, is found in the reported cases where the record presents the case of a blank indorsement by a third party, made before the instrument is indorsed by the payee, and before it is delivered to take effect, the question being whether the party is to be deemed an original promisor, guarantor, or indorser. Irreconcilable conflict exists in that regard ; but there is one principle upon the subject almost universally admitted by them all, and that is, that the interpretation of the contract ought in every case to be such as will carry into effect the intention of the parties, and in most cases it is admitted that proof of the facts and circumstances which took place at the time of the transaction are admissible to aid in the interpretation of the language employed.” (Good v. Martin, 95 U. S. 90.)

We think the parties who signed this note as trustees had the right at the trial to introduce this testimony, and that it was properly admitted.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

Clark, J., concurring. Garver, J., not sitting, having been of counsel in court below.