Challiss v. Wylie

• Decision Date: 09 July 1886
• Citation: 35 Kan. 506,11 P. 438
• Parties: WILLIAM L. CHALLISS v. MAMIE A. WYLIE
• Court: Kansas Supreme Court

11 P. 438

35 Kan. 506

WILLIAM L. CHALLISS v. MAMIE A. WYLIE

Supreme Court of Kansas

July 9, 1886

Error from Atchison District Court.

ACTION brought September 22, 1884, by Mamie A. Wylie against W. L Challiss, to recover $ 1,500 and interest upon a promissory note, of which the following is a copy:

"$ 1,500.

ATCHISON KANS., Feb. 15, 1883.

"One day after date, I promise to pay to the order of Mamie A Wylie the sum of fifteen hundred dollars, for value received to bear ten per cent. interest per annum from date; if the interest is not annually paid, to become as principal and bear the same rate of interest; payable without defalcation or discount. And I do hereby relinquish and waive all rights to the benefit of all laws in force in this state exempting personal property from levy or forced sale on any judgment, execution or attachment, or other legal process in the collection of the above debt, with five per cent. per month for damages if collected by attorneys.

[Signed]

W. L. CHALLISS."

Indorsements on said promissory note as above described: "Pay to the order of A. M. Wylie.-- Mamie A. Wylie; A. M. Wylie."

On December 1, 1884, the defendant filed an answer, alleging, among other things, that the plaintiff was not the real party in interest, and setting up that she never had any interest in the note, but that it was put in her name by R. W. Wylie, her husband, the real party in interest, as a part of a fraudulent scheme to secure the confidence of the defendant, then his employer, and thereunder to fraudulently appropriate defendant's goods in his care as such employe to his own use; that thereby the defendant was defrauded by said R. W. Wylie of his goods to the amount of $ 2,000; that said R. W. Wylie was otherwise insolvent, and the defendant had no other remedy than by counterclaim in such action against R. W. Wylie, the real and only party of adverse interest to the defendant. The defendant also asked to have R. W. Wylie made a party to the action, and thereon that the pleadings be reconstructed to join issue upon defendant's claim, to the end that R. W. Wylie should be adjudged the real holder of the note and defendant's rights against him determined.

Upon plaintiff's motion to strike out, as not constituting any defense and as irrelevant and redundant, the said answer, the court sustained the motion in part, and struck therefrom all the allegations concerning the alleged counterclaim or set-off. Thereupon the plaintiff filed her motion for judgment on the pleadings, which was overruled, and the case was tried March 13, 1885, by the court, a jury being waived. The court made and filed the following conclusions of fact:

"1. On February 15, 1883, the defendant made and delivered his promissory note, payable to the order of the plaintiff, a true copy of which is attached to the plaintiff's petition as Exhibit A.

"2. Said promissory note was afterward indorsed by the plaintiff as follows: 'Pay to the order of A. M. Wylie. (Signed) Mamie A. Wylie.' And said A. M. Wylie afterward indorsed said note in blank, as follows: 'A. M. Wylie.'

"3. At the commencement of this action the plaintiff was, and ever since said time has been, the indorsee and holder of said promissory note under said indorsement in blank."

And thereon the court filed the following conclusions of law:

"1. The plaintiff is entitled to a judgment against the defendant for the sum of $ 1,500, together with interest thereon from February 15th, 1883, at the rate of ten per cent. per annum, being in all the sum of $ 1,811.

"2. The plaintiff is entitled to a judgment against the defendant for costs of suit."

The defendant excepted to each conclusion of fact and law, and subsequently filed a motion for a new trial, which was overruled. The court rendered judgment in favor of the plaintiff and against the defendant for the sum of $ 1,811, together with all costs. The defendant excepted to the rulings and conclusions of the court, and also to the judgment rendered, and brings the case here.

Judgment affirmed.

W. W. Guthrie, for plaintiff in error.

Smith & Solomon, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

We think the trial court committed error in striking out of the answer of Challiss his set-off against Robert W. Wylie for the sum of $ 2,000. In this state, any cause of action arising from contract, whether it be for a liquidated demand or for unliquidated damages, may constitute a set-off and be pleaded as such in any action founded upon contract; and a cause of action founded upon an implied contract may be pleaded in set-off as well as any other cause of action. Even where a cause of action is founded upon a tort, a party may waive the tort if he choose, and treat his cause of action as one arising upon an implied contract. Wherever a person commits a wrong against the estate of another, with the intention of benefiting his own estate, the law will, at the election of the party injured, imply or presume a contract on the part of the wrong-doer to pay to the party injured the full value of all benefits resulting to such wrong-doer. And in such a case the party injured may elect to sue upon the implied contract for the value of the benefits received by the wrong-doer. (Stewart v. Balderston, 10 Kan. 131; Stevens v. Able, 15 id. 584; Read v. Jeffries, 16 id. 534; Tightmeyer v. Mongold, 20 id. 90; Fanson v. Linsley, 20 id. 235.) The answer of Challiss alleged that Mrs. Mamie A. Wylie, the plaintiff, was not the real party in interest; that the consideration of the note sued upon was furnished by Robert W. Wylie, and that he was the actual owner of the note. If this was true, Challiss had the right to plead and establish his alleged set-off.

The material question in the case is, conceding the error of the court in striking out portions of the answer, was this error a...