92 Kan. 317 | Kan. | 1914
The opinion of the court was delivered by
This action is to recover the amount of a promissory note made by the lessor and lessees of farming lands; for an accounting of proceeds of the crops raised upon the land and delivered to the defendants for sale; and for the application of one-half the proceeds upon the plaintiffs’ claim under an agreement between all the parties.
The cause was referred and judgment was entered upon the referee’s report for the plaintiff.
The principal contention is over the question whether certain payments made by the defendants to the Kurtzes after the date of the contract of September 19 should be deducted from the amount of sales in arriving at the net proceeds. Part of these pay
“At the time this contract was executed I believed this property was sufficient to pay all indebtedness to the Westons and to the Staleys on the representation of the acreage. I relied on the representation on the acreage and believed what Clark and Kurtze told me. I supposed we would make enough out of this crop to get all that was due us and pay the Staleys and then have something left and we ratified the contract knowing what was in it. I was out at the farm I expect three times in the early part of August.”
After each sale of products the defendants rendered an account in the ordinary form in transactions of this nature, giving dates, names of purchasers, quantities,
The finding that the money paid to Kurtze for hauling in the crops should not be deducted from the amount of sales in arriving at the net proceeds must be sustained. If it should not be so held as a matter of law from the terms of the contract, a question of fact was presented upon which the finding, of the referee, approved by the district court, can not be disturbed.
Assignments of error upon questions of practice remain to be considered. It is insisted that a demurrer to the petition should have been sustained because the plaintiff’s remedy was upon the note against the makers. It is not perceived how the existence of that remedy prevented them from resorting directly to the fund specially set apart for payment of the note. It is said, however, that the plaintiffs had no right to recover upon , the contract of September 19, because they were not parties to it. That a person may recover upon an agreement or promise made to another for his- benefit upon a sufficient consideration has been settled by many decisions. (Griffith v. Stacker, 91 Kan. 47, 51, 136 Pac. 937.)
Complaint is made of the order of reference, but it does not appear that the defendants objected when the order was made, nor before or during the trial, although appearing and participating therein. An objection made when the'report was filed was too late. The case involved an accounting of sales of crops of different kinds at various times, supposed at the time to be worth $5000. The court believed a reference to
On cross-examination of a witness for the plaintiffs the question was asked, What amount was due on the plaintiffs’ note? Payment had not-been pleaded, nor any issue raised as to the amount due. Although the evidence might have been admitted without apparent prejudice, there was'no error in excluding it. One of the defendants was asked why he had made no payments to Staley. The defendants had stated their reason in their pleading, and the facts of the transaction were related in the evidence. It is not perceived how any possible prejudice could result from excluding an answer to this very general question, which would involve substantially a rehearsal of the defense. The defendants also allege error in excluding their offer to show the items of the advances making up the amount of $700 included in their mortgage. There was no error in this ruling because the amount had been agreed to and settled, and there is no claim that it is not correct.
No error is found in the proceedings and the judgment is affirmed.