Bronson v. Ashlock
| Citation | 41 P. 1068,2 Kan.App. 255 |
| Decision Date | 01 September 1895 |
| Docket Number | 45 |
| Parties | AUSTIN H. BRONSON v. MARY ASHLOCK et al |
| Court | Kansas Court of Appeals |
Opinion Filed October 9, 1895.
MEMORANDUM.--Error from Graham district court; CHAS. W SMITH, judge. Action in foreclosure brought by Austin H Bronson against Mary Ashlock, W. R. Hill, and others. Judgment for defendants. The plaintiff brings the case to this court. Reversed. The facts are stated in the opinion filed October 9, 1895.
Judgment reversed.
Waggener, Horton & Orr, for plaintiff in error.
H. M. Baldwin, for defendant in error W. R. Hill.
OPINION
Under date of September 1, 1887, Mary Ashlock, for herself and as guardian of certain heirs of D. C. Ashlock, deceased, executed a negotiable note and mortgage in favor of the Guaranty Investment Company for the sum of $ 300, due in five years thereafter, with interest at the rate of 7 per cent. per annum, to be paid semiannually, both principal and interest being made payable at the Exchange National Bank, Atchison, Kan. On December 20, 1887, the note and mortgage were transferred to Austin H. Bronson, who commenced this action, on November 21, 1892, in the district court of Graham county, against the makers of the note and others for the recovery of the principal and unpaid interest of the note and for the foreclosure of the mortgage. The makers of the note and mortgage were served by publication, and made default. W. R. Hill, one of the defendants, appeared, and answered the plaintiff's petition by alleging that he was the owner in fee simple of the land upon which the mortgage was sought to be foreclosed, having derived his title thereto by conveyance executed by Mary Ashlock in February, 1889; that about February 4, 1889, "said defendant Mary Ashlock, widow of D. C. Ashlock, deceased, and guardian of the said minor heirs of the said D. C. Ashlock, deceased, paid to the Guaranty Investment Company the amount in full of said note, and the interest due thereon; and said Guaranty Investment Company was duly authorized in fact and in law to receive the same, and said payment was then and there received in full settlement of said note and mortgage." The plaintiff filed a reply to the answer of Hill, consisting of a general denial, unverified. The trial was had by a court and a jury, resulting in a verdict in favor of Hill, upon the issues joined between him and the plaintiff, on which judgment was rendered against the plaintiff for costs.
The evidence tends to show that early in 1889 Hill purchased the land mortgaged from Mrs. Ashlock, and received from her a deed of conveyance purporting to convey to him the fee-simple title to the premises, free and clear from all incumbrances; that Mrs. Ashlock provided for the discharge of the mortgage by having Hill remit $ 300 of the purchase-money for the payment thereof; that Hill obtained a draft for $ 300 from a bank in Hill City and sent the same to one of the officers of the Guaranty Investment Company at Atchison, where said company had its main offices. There is no evidence tending to show what became of this draft, or that the plaintiff, who was then the holder and owner of the note and mortgage, received any benefit therefrom.
The case was tried, and is now presented, upon the theory that the Guaranty Investment Company, at the time of the payment to it of the $ 300, was the agent of the plaintiff, Bronson, duly authorized to receive payment of the principal and interest of this note, and, consequently, that a payment to said company would bind the plaintiff. Evidence was introduced to prove the alleged agency of the Guaranty Investment Company, and that question was treated all through the trial as a material controverted fact to be determined, and was so submitted by the court to the jury. Counsel for Hill claim, in this court, that the fact of agency was admitted by the pleadings; that the failure of the plaintiff to deny under oath the allegation contained in Hill's answer, that "said Guaranty Investment Company was duly authorized in fact and in law to receive the same," left that fact admitted. Whether this was such an allegation of authority, within the meaning of the code, as should be denied under oath, in order to put it in issue, is not necessary to decide; for, the trial having proceeded as if that fact was in issue, the necessity for any such denial under oath will be deemed to have been waived, and it is too late now to raise the objection for the first time. (Ciesielski v. Nowacki, 39 Kan. 340, 18 P. 232.)
The only evidence of agency offered was that payments of the interest coupons, due March 1, 1888, ...
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