Burton v. Dewey

• Decision Date: 01 September 1896
• Docket Number: 87
• Citation: 4 Kan.App. 589,46 P. 325
• Parties: JOHN M. BURTON et al. v. C. P. DEWEY et al
• Court: Kansas Court of Appeals

46 P. 325

4 Kan.App. 589

JOHN M. BURTON et al. v. C. P. DEWEY et al

No. 87

Court of Appeals of Kansas, Northern Department, Western Division

September 1, 1896

Opinion Filed October 9, 1896.

MEMORANDUM.--Error from Rawlins district court; G. WEBB BERTRAM, judge. Action by C. P. and A. B. Dewey, copartners as C. P. & A. B. Dewey, against John M. Burton and others on a guaranty of a note. Judgment for plaintiffs. Defendants bring the case to this court. Reversed. The opinion herein filed October 9, 1896, states the material facts.

Judgment reversed and case remanded.

A. H Ellis, F. T. Burnham, and Dempster Scott, for plaintiff in error John M. Burton; D. M. Valentine, and R. S. Hendricks, of counsel.

Bertram & McElroy, for defendants in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

May 1, 1891, C. P. & A. B. Dewey, as plaintiffs, commenced this action in the district court of Rawlins county against Michael Flaherty and others on a note and mortgage executed by the said Michael Flaherty in favor of plaintiffs for $ 500. The plaintiffs in error, Burton & Hendricks, were joined as defendants, a personal judgment being asked against them for the amount of the note and interest on the following guaranty:

"ATWOOD, KAN., April 25, 1887.

"For a valuable consideration, we hereby guarantee C. P. & A. B. Dewey, of Chicago, Ill., against any loss by reason of a loan of $ 500 negotiated by us as agents for said C. P. & A. B. Dewey, said loan being secured by mortgage on the west half of the northwest quarter and the west half of the southwest quarter of section 22, township 1 south, range 36 west, in Rawlins county, state of Kansas. Said notes and mortgage have been executed by Michael Flaherty.

BURTON & HENDRICKS."

Trial was thereafter had by the court and a jury, upon the issues joined between the plaintiffs and Burton & Hendricks--the other defendants being in de-fault--and a judgment was rendered upon the verdict of the jury adjudging the amount due on the note and mortgage, to wit, $ 803.85, to be a first lien upon the mortgaged premises, and directing, in case of the failure of the defendants to pay said sum within six months from the date of judgment, that an order of sale issue for the sale of the mortgaged premises without appraisement, and that the proceeds thereof should be applied to the payment of the costs, taxes, and said judgment debt. Personal judgment was also rendered at the same time against said Burton & Hendricks for the amount found to be due on said note, and directing that, after sale of said lands and application of proceeds, "let execution issue on demand, against the property of defendants John M. Burton and R. S. Hendricks." At the time said action was commenced Michael Flaherty was dead. His legal heirs were made parties to the suit, but his executor or administrator, if there was one, was not brought into court. Burton & Hendricks now complain of this judgment, contending that they had assumed no such obligation as that put upon them by the judgment of the court. Both in the petition of the plaintiffs and upon the trial of the case, the guaranty of the defendants Burton & Hendricks was treated as a guaranty of payment of the Flaherty debt. This was clearly an erroneous view of the matter. The language of the writing is not ambiguous, and plainly expresses the nature and extent of the obligation. It is familiar law that the liability of a surety or guarantor is not to be extended beyond the precise terms of his contract. When the language of the contract is plain it must control. (Kepley v. Carter, 49 Kan. 72, 30...