Beeler v. The Highland University Company
| Decision Date | 01 September 1898 |
| Docket Number | 383 |
| Citation | 54 P. 295,8 Kan.App. 89 |
| Parties | JOSIAH S. BEELER AND J. F. BEELER v. THE HIGHLAND UNIVERSITY COMPANY |
| Court | Kansas Court of Appeals |
Opinion Filed September 17, 1898.
Error from Doniphan district court; R. M. EMERY, judge. Reversed.
Judgment reversed, and case remanded.
Albert Perry, and Ryan & Stuart, for plaintiffs in error.
James Falloon, for defendant in error.
This is a suit by the defendant in error against the plaintiffs in error upon a promissory note payable five years after date as follows:
On the back thereof is written:
The defendants' answer contained: (1) A general denial; (2) a plea of the statute of limitations as to the interest due prior to the 1st day of June, 1889; (3) an allegation that the note was a donation given on a condition that $ 20,000 was to be raised by September 1, 1885, in good, valid subscriptions by solvent subscribers, and was given on the further condition that if the university should fail to go forward the principal should revert to the giver; that said sum was not raised in the time specified, and that the university had failed to go forward as specified in said condition, and that by reason thereof said note had failed; (4) an allegation that the note sued on was obtained by the false representations made by one Duncan Brown, plaintiff's duly authorized agent, as to subscriptions already made, and particularly the pretended subscription of one J. P. Johnson; that it was represented to the defendants that Johnson had proposed to subscribe on the same conditions $ 10,000 if the citizens of Highland and vicinity would subscribe a like $ 10,000, and that Johnson had not in fact subscribed $ 10,000 before September 1, 1885, on like conditions, or subscribed $ 10,000 at all.
Plaintiff demurred to the plea of the statute of limitations, and its demurrer was sustained. Plaintiff filed a reply to the other counts of the defendants' answer, which contained: (1) A general denial; (2) a special denial that there were any conditions attached to the note sued on except such as were set out in the note, and an allegation that they were complied with; (3) the claim that no representations were made to the defendants to procure the note sued on herein; that the defendants attached thereto such conditions as they saw fit and such conditions were generally understood among the donors to the said endowment fund, and that the defendants, with full knowledge of all the conditions that may have been attached to any subscription, executed the note without any reference thereto; (4) an allegation that the defendants at the time they signed the note were fully aware of the manner in which all subscriptions were made and the conditions thereto attached, and with full knowledge thereof executed the note sued on as well as the other donors executed theirs, and such other donors have largely paid their donations and interest thereon; (5) an allegation that J. P. Johnson had not, at the commencement of the suit or at any other time, availed himself of any conditions attached to his subscription, and that the conditions attached by Johnson were a part of the act incorporating the plaintiff. There was a trial to a jury on the issues thus joined and a judgment for the plaintiff on the note.
The burden being on the plaintiff to show that the conditions on which the note was to be valid had been performed or had happened, it offered the oral evidence of Duncan Brown, who solicited the subscriptions, and who was at the time one of the trustees of the university and authorized by the board to solicit the donations, who testified that J. P. Johnson and Doctor Ganse, secretary of the board of aid for colleges of the Presbyterian church, had a conversation in which Johnson proposed to give the college $ 10,000 on the condition that the citizens of Highland and vicinity would give a like $ 10,000 to endow the first chair in the university; that the conversation was reduced to writing, a typewritten copy furnished to him, and that he had copied that in a little book of his own; that the same had been read, either from the typewritten copy or his book, at a public meeting, before he began taking subscriptions and before any notes were given; that he did not know whether the defendants were at the meeting where the proposition was read or not; and that he had procured subscriptions to the university amounting altogether to nearly $ 12,000. He was asked from whom he obtained these subscriptions, and he said he could only answer by reading a book which he held in his hand in which he had put it down in the ordinary course of subscriptions; that "there was really no such thing as a subscription -- the idea that seems to be in the mind of some people; that is to say, it was not a subscription paper which people sign their names to." He was then asked: "I am not asking you about who signed the paper; I am asking you to give the amount that you obtained of the different parties as a subscription to this endowment fund?" The answer was," It depends upon what you mean by a subscription." He was then asked to state the amount that he had obtained, and to this he replied, He was asked to look at the book to refresh his memory; and whether he had an independent recollection of each man's subscription -- the amount subscribed by different parties. To this the defendants objected, as being incompetent and irrelevant. The court inquired: "These entries were made at the time these promises were secured, were they?" To this the witness answered in the affirmative, and the objection was then overruled, and the defendants excepted. The witness proceeded to state the names and amounts that he claimed had been subscribed to make up the $ 10,000 which was to meet a like subscription proposed by Johnson. During this statement he was frequently asked by plaintiffs' counsel whether the amount was in note or in cash. The objection was again renewed from time to time that this oral statement was not the best evidence. At the conclusion of this statement he was asked:
Objected to by the defendants as incompetent and not the best evidence. This objection was overruled and excepted to. "A. $ 10,000.
The plaintiff then called its treasurer and asked whether Mr. Gates fulfilled his subscription by cash or by note prior to September 1, 1885. This was objected to as incompetent, irrelevant, and not the best evidence. The objection was overruled and excepted to, and the witness answered that Mr. Gates gave a note. He then testified that a number of other subscribers gave notes, and that as to others he knew nothing. The plaintiff then rested its case.
At the conclusion of the plaintiff's evidence, the defendants moved to strike out all of the oral testimony of Duncan Brown and Treasurer Allen as to the subscriptions being made to the endowment fund as a performance of the condition in the note, which motion was denied by the court, the defendants excepting. The defendants demurred to the evidence for the reason that it was not sufficient to establish a cause of action against them. This demurrer was overruled and an exception to that ruling allowed.
It appears from the record that the subscription of Johnson alluded to was reduced to writing, and amounted to an agreement to pay to the university seven per cent. interest on $ 10,000 during the life of Johnson, and a promise that he would make provision that his executors should continue to pay interest or pay the principal sum to the trustees after his death; or, if he had invested $ 10,000 himself from which to raise the interest, that he would direct his executors under his will to turn these securities over to the board of trustees of the college. So that in point of fact there was no subscription by Johnson of $ 10,000 to the university as an endowment, within the meaning of the understanding of the parties proposing to raise the fund of $ 20,000 therefor.
The first specification of error is that the court erred in sustaining the plaintiff's demurrer to the second count of the defendants' answer, pleading the statute of limitations as to the interest. It was the agreement that if the interest was not paid it should become a part of the principal and likewise draw interest. It seems to have been intended by the parties that the makers might, at their option, pay the interest or not; and if they did not, that it became a part of the principal of the endowment and drew interest thereafter. So...
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