Walter v. Logan

65 P. 225 | Kan. | 1901

The opinion of the court was delivered by

Greene, J.:

There was no allegation in the answer of either Hill or Logan that the Western Farm Mortgage Company, or either of its successors, was the agent of Walter, the owner and holder of the note and mortgage, nor was there any evidence produced on the trial tending to establish such fact. The interest coupons, which were paid by Logan and by Hill to the Western Farm Mortgage Company and its successors, and returned to them, brought home to them knowledge that neither Neill nor the Western Farm Mortgage Company,- or either of its successors, was the owner-or holder of said note and mortgage. The testimony conclusively showed that neither Walter, the owner of the note and mortgage, nor his brother, who was his agent in the transaction, ever authorized the Western Farm Mortgage Company, or its successors, to collect for the plaintiff in error either the interest or principal of said note, and it conclusively showed that neither of them had any information that the Western Farm Mortgage Company, or its successors, were doing so. The interest and principal were payable at the Third National Bank of New York. Charles T. Walter, who was the agent of his brother, the plaintiff in error, deposited the interest coupons, as they became due, in his own bank at St. Johnsbury, Vt., for collection. These interest coupons were forwarded in the regular course of business to the Third National Bank of New York, and by it paid and the amount credited to plaintiff in error.

We are unable to see, after a careful examination of the evidence, how it was possible for the jury to find that the Western Farm Mortgage Company, or its successors, were the agents of plaintiff in error for the collection of this note. Before it can be held that a payment to the Western Farm Mortgage Company, or its successors, discharged the liabilities, this fact must be fairly deducible or inferable from the evidence. Upon this question the verdict of the jury was not only against the weight of the evidence, but it was not supported by any evidence. The court should have granted the plaintiff in error a new trial.

There are some other questions raised by the plaintiff in error, but in the view that we have taken of this case they become immaterial.

The judgment of the court below will be reversed and the cause remanded.

Johnston, Cunningham, Ellis, JJ., concurring.