Cabbell v. Knote

• Decision Date: 01 December 1895
• Docket Number: 29
• Parties: E. B. CABBELL et al. v. W. P. KNOTE
• Court: Kansas Court of Appeals

43 P. 309

2 Kan.App. 68

E. B. CABBELL et al. v. W. P. KNOTE

No. 29

Court of Appeals of Kansas, Southern Department, Western Division

December 1, 1895

Opinion Filed January 17, 1896.

MEMORANDUM.--Error from Pratt district court; S.W. LESLIE judge. Action on a promissory note by W. P. Knote against E B. Cabbell and others. Judgment for plaintiff. Defendants bring the case to this court. Reversed. The opinion herein filed January 17, 1896, states the material facts.

Judgment reversed and cause remanded.

Thompson & Apt, for plaintiffs in error.

Ellis & Barrett, for defendant in error.

DENNISON, J. All the Justices concur.

OPINION

DENNISON, J.:

The defendant in error brought suit in justice court in Pratt county, Kansas, on a promissory note of $ 150, dated August 27, 1888, executed and delivered by the plaintiffs in error to him, a copy of which said note is as follows:

"$ 150. PRATT, KAN., August 27, 1888.

"For value received, one year after date, we promise to pay to the order of W. P. Knote $ 150, at the First National Bank, in Pratt, Kan., with interest from date at the rate of 12 per cent. per annum.

E. B. CABBELL. Z. BRIGHT.

THOMAS W. GANNAWAY. G. W. Fox.

R. F. WHITMAN."

Judgment was rendered for said defendant in error, and plaintiffs in error appealed to the district court. In the district court the plaintiffs in error obtained leave to answer, and filed a verified answer denying that they gave the note sued on as their joint and several promissory note. They allege that said Knote, through his agent, G. A. Sears, sold to the First African M. E. Church of Pratt, Kan., a corporation duly organized under the laws of the state of Kansas, a certain building for the sum of $ 200; that the said corporation paid at the time $ 50, and gave its note and a mortgage to secure the payment thereof for $ 150; that the said note and mortgage are each parts of one and the same contract, and that said Knote, by his said agent, Sears, accepted said note, with the distinct understanding that the same was signed by the said defendants as trustees of said corporation, and that the making, execution and delivery of said note and mortgage was the act of said corporation. The said mortgage is attached to and made a part of the answer. The mortgage states that the trustees of the First African M. E. Church of Pratt City are indebted to W. P. Knote in the sum of $ 150. The property described in the mortgage is as follows:

"All that tract or parcel of land situated in the county of Pratt and state of Kansas described as follows, to wit: Lot 8, in block 13, in Calhoun's addition to the town of Pratt Centre, now Pratt City, as shown by the original plat of said addition now on file in the office of register of deeds of said county; also a building now standing on lot 3, in block 33, in the town of Saratoga, Kan., being a one-story frame building, 40 feet long and 20 feet wide. Said trustees of the first part are to move said building from off the last-described lot and place same on the lot first described in the mortgage, to wit, lot 8, in block 13, in Calhoun's addition to Pratt Centre, Kan., and this mortgage to be the first lien on said building and lot."

The mortgage also contains the following stipulation:

"This grant is intended as a mortgage to secure the payment of $ 150, according to terms of a certain note this day executed and delivered by the said trustees of said church to the said W. P. Knote, payable at the First National Bank of Pratt, Kan., as follows, to wit: $ 150 on the 27th day of August, 1889, with interest thereon at the rate of 12 per cent. per annum from date, to the said party of the second part."

The plaintiff below filed a motion for judgment for the plaintiff on the pleadings, which motion was sustained, and judgment rendered against these plaintiffs in error for $ 188.40 and costs, and they bring the case here for review, alleging that the court erred in sustaining said motion for judgment, and in overruling their motion for...