Bottom v. Harris

• Decision Date: 11 December 1920
• Docket Number: 22,344
• Citation: 193 P. 1058,108 Kan. 7
• Parties: MINNIE BOTTOM, Appellee, v. OWEN HARRIS, Appellant
• Court: Kansas Supreme Court

193 P. 1058

108 Kan. 7

MINNIE BOTTOM, Appellee, v. OWEN HARRIS, Appellant

No. 22,344

Supreme Court of Kansas

December 11, 1920

Decided July, 1920

Appeal from Pottawatomie district court; ROBERT C. HEIZER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROMISSORY NOTE--Demurrer to Evidence Properly Overruled. The demurrer to the evidence of the plaintiff was properly overruled.

2. SAME--Note--Given in Settlement of Family Controversy--Good Consideration. A note given in settlement of a controversy arising between brothers and sisters over the will of their father, all of whom are beneficiaries thereunder, but one of whom is threatening to contest the will, is upon sufficient consideration.

3. SAME--Compromise and Settlement--Ratification by Interested Party. A sister who was not present at the settlement and who did not participate therein, but to whom a note was given, by accepting it and suing to recover upon it ratified the settlement, and the maker cannot avoid paying the note for the reason that the sister did not take part in the settlement.

4. COMPROMISE AND SETTLEMENT--No Mutual Mistake Shown. In such a settlement, where the brothers arrive at a basis of agreement, and two of those to whom land had been devised fix a valuation on that land and on the land devised to a third brother, who knew the value of all the land, and who thereafter gave his note based on the value fixed by his brothers, there is no mutual mistake as to the valuation.

5. SAME--Testimony Received by Agreement--No Error. Testimony taken on a trial in another action may be read in evidence by agreement and when so read complaint cannot be thereafter made of its admission.

6. SAME--Default of One Party to a Settlement--Settlement Not Vitiated. Where notes are given in the settlement of a family controversy and afterward one of the makers fails to pay a note thus given by him, such failure cannot be shown for the purpose of defeating a note given by one of the other parties in the settlement.

Chester A. Leinbach, of Onaga, and J. K. Codding, of Lansing, for the appellant.

Guy L Hursh, of Topeka, E. R. Sloan, of Holton, and W. F. Challis, of Wamego, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff recovered a judgment on a promissory note, and the defendant appeals. William Harris died after executing his will giving to each of three of his sons, William J. Harris, Nathan C. Harris, and Owen Harris, eighty acres of land, and to another son and to a daughter $ 100 each. The will was probated; its terms were fully complied with; the estate was settled, and the executor discharged. Other facts recited in special findings made by the court were as follows:

"4. On the day the will was admitted to probate it was opened and read by the probate judge of Pottawatomie County, Kansas. There were present Owen Harris, George Harris, William J. Harris, Nathan C. Harris and the witnesses to the will. When the will was read George Harris expressed dissatisfaction with the will and said he would contest the will. It was also claimed at that time that Owen Harris, the defendant, owed the estate the sum of four hundred dollars.

"5. On the 3d day of July, 1911, William J. Harris, George Harris, Nathan C. Harris and Owen Harris, met at the old home place for the purpose of attempting to agree on an adjustment of their differences, and make an amicable settlement of their father's estate. Each of the boys who received real estate expressed a desire to make a settlement and avoid litigation.

"6. It was at this meeting of the brothers suggested that the land be sold and the money equally divided among the children. This Owen Harris objected to, and said he would pay as much as Will or Nathan if the terms of the will were carried out.

"7. The defendant, Owen Harris, refused to make any estimate on the value of the land. He was familiar with the land and knew its value. The land was estimated by William and Nathan at fifty-five dollars per acre, and on this basis it was concluded that Owen, Nathan and William should each pay to George and Minnie the sum of eight hundred eighty dollars each. It was agreed between all of the brothers that the said Owen Harris, William J. Harris and Nathan C. Harris would each execute a note to Minnie Bottom in the sum of eight hundred eighty dollars, and notes in like amount to George Harris, and that the terms of the will of William Harris, deceased, should be carried out, and that no contest or litigation be had concerning said estate.

"8. The notes were executed in accordance with the agreement, payable in one year, and it was further agreed that the notes should be held in the Havensville State Bank until they were due. They were not to be negotiated as negotiable instruments, and at maturity the notes were to be delivered to the payees therein.

"9. The notes were duly executed and delivered to Ira Eddy to be held by the Havensville State Bank until their maturity, and on maturity the note in question was delivered by the said Ira Eddy to the agent of the plaintiff, James Bottom. All of said notes have been paid except the note sued on in this action, and the note given by defendant to George Harris. The payments provided for in the will have been made. The note sued on in this action is in words and figures as follows:

"$ 880.00

HAVENSVILLE, KANSAS, July 3, 1911.

"One year after date we promise to pay to the order of Minnie Bottom at the Havensville State Bank, Havensville, Kansas, eight hundred eighty and no/100 dollars with interest at . . . per annum from date until paid, if not paid at maturity. Value received. We, the makers, signers, endorsers and guarantors of this note severally waive demand, protest, notice of protest and non-payment thereof.

OWEN HARRIS.

"10. The court further finds that said note was duly and legally delivered to the plaintiff herein, and was given for a valuable consideration, and that the said defendant was not defrauded and that there was no mutual mistake between the parties."

On these facts the court made the following conclusion of law:

"The [court] finds, as a conclusion of law, that the note sued on in this action is valid, and that the plaintiff is entitled to recover the sum of $ 880.00 with interest at 6 per cent per annum from July 3, 1912."

The defendant refused to pay the note given by him to the plaintiff, and this action resulted.

1. The defendant complains of the overruling of his demurrer to the evidence of the plaintiff, and argues that there was no evidence to show a delivery of the note to the plaintiff. The findings of fact show that when the note was placed in the bank it passed beyond the control of the defendant. It then became the property of the plaintiff, and was afterward delivered to her agent. These facts were stated in the eighth and ninth paragraphs of the findings of the court and were supported by evidence. The demurrer was properly overruled.

2. Another contention of the defendant is that there was no consideration for the note; that the note was merely an executory contract evidencing a promise by the defendant to give to the plaintiff as a gift the sum of $ 880. To ascertain the consideration for the note we again refer to the findings of fact which show that there was a will dissatisfaction with its provisions, a threatened contest, and a compromise and settlement of the differences between the members of the family interested in the will. Settlements of controversies of this character are favored...