87 Kan. 310 | Kan. | 1912
The appellants sued to recover the sum of $1040, alleged to have been wrongfully paid to appellee by Albert Sarbach, grand treasurer of the Grand Lodge of Masons of Kansas, out of lodge moneys, in settlement of a personal debt which Sarbach was owing to her. The jury found generally for appellee, and this is an appeal from a judgment in her favor for costs.
The facts are stated quite fully in the former opinion (Washbon v. Hixon, 86 Kan. 406, 121 Pac. 518), where the judgment in favor of Mrs. Hixon, appellee, was affirmed. The decision was placed upon the ground that appellants, in their reply, admitted the averments of the answer that after Mrs. Hixon had received the money upon the check of Albert Sarbach, grand treasurer, in payment of his personal indebtedness to her, the grand lodge made a full settlement with him in which he accounted for all moneys in his hands as treasurer. The effect of this admission appellants sought to avoid by alleging that the settlement and accounting was procured by the fraudulent representations of Sarbach; that in fact he was at the time of the settlement and continued thereafter short in his accounts with the grand lodge. It appearing from the abstract that the appellants had failed to offer any evidence to show that the settlement had been fraudulently obtained, or that the grand lodge had not been paid at the time of such settlement all moneys due from Sarbach, it was held that the trial court was right in taking the issue of fraud in the settlement from the jury, and that the general verdict in appellee’s favor should stand.
Upon rehearing we are satisfied that the burden was upon appellee to show that subsequent to the payment of the check to her the grand lodge received from Sarbach the sums due from him as treasurer, or that he had the same on hand; and that the mere fact that he ac
■ The court should have instructed at the request of the appellants that it was no defense for appellee to say that she did not in fact know that the check was payable out of the funds of the grand lodge. It follows also that it was error for the court to charge that she could not be held liable if she had reasonable ground for believing the check to be the personal check of Sarbach. The findings of the jury that in payment of a personal note which Sarbach owed to her the appellee received from him a check signed by him as grand
The judgment is therefore reversed and the cause remanded with directions to enter judgment for appellants on the special findings.