Christie v. Scott

• Decision Date: 08 February 1908
• Docket Number: 15,364
• Citation: 94 P. 214,77 Kan. 257
• Parties: W. L. CHRISTIE v. ROY SCOTT
• Court: Kansas Supreme Court

94 P. 214

77 Kan. 257

W. L. CHRISTIE v. ROY SCOTT

No. 15,364

Supreme Court of Kansas

February 8, 1908

Decided January, 1908.

Error from Chautauqua district court; GRANVILLE P. AIKMAN, judge.

STATEMENT.

W. L CHRISTIE sold to Roy Scott at different dates a wagon, a buggy and a cultivator, and, to secure the payment of the purchase-price, took separate promissory notes for the amount of each purchase. On the same paper, following the usual form of a promissory note and above the signature thereto, was the following:

"The express condition of the sale and purchase of [words describing the particular implement] for which this note is given is such that the right or title or ownership does not pass from W. L. Christie until this note and interest is paid in full, and he may declare this note due at any time, even before its maturity, and also take possession of said above-named property, remove and sell the same, and apply the proceeds toward payment of this note, less the expense of such removal and sale. All expense incurred in the collection of this note after maturity shall be paid by the maker thereof.

"Payable at the office of W. L. Christie, Cedar Vale, Kan."

Two of the notes were paid in part, and, the other remaining wholly unpaid, Christie took possession of each implement, sold it and indorsed the proceeds on the note given for the purchase-price thereof. Thereafter he brought suit against Scott in a justice court, setting up the notes and the payments thereon, and alleging the absence of the defendant from the state for a sufficient time to remove the apparent bar of the statute of limitations. The case was appealed from the justice court to the district court of Chautauqua county where a demurrer was filed to the plaintiff's petition and sustained, and the case is brought to this court to review the ruling thereon.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. SALES--Conditional--Purchase-money Note--Retaking Possession--Revocation of Contract--Failure of Consideration. C. sold to S. an article of personal property and at the time of sale took a promissory note executed by S. for the full amount of the purchase-price, bearing interest until paid, and on the same paper, following the promissory note and before the signature of the maker, the following contract was inserted: "The express condition of the sale and purchase of [words describing the particular implement] for which this note is given is such that the right or title or ownership does not pass from W. L. Christie until this note and interest is paid in full, and he may declare this note due at any time, even before its maturity, and also take possession of said above-named property, remove and sell the same, and apply the proceeds toward payment of this note, less the expense of such removal and sale. All expense incurred in the collection of this note after maturity shall be paid by the maker thereof. Payable at the office of W. L. Christie, Cedar Vale, Kan." C., in accordance with the provisions of the contract, after default of payment, took possession of and sold the property described therein and applied the proceeds toward the payment of the note, and afterward brought suit for a balance remaining unpaid thereon. Held, that the law does not imply a revocation of the contract by such taking and selling, nor does it imply that there is no consideration remaining to support a recovery upon the unconditional promise in the note to pay the remainder of the purchase-price.

2. PLEADINGS--Demurrer--Statute of Limitations. Where it appears by a pleading that more than five years have elapsed since the maturity of a note before the bringing of an action thereon, but facts are alleged in the pleading which, if true, suspended the running of the statute for such time that the bar thereof had not fallen at the commencement of the action, a demurrer to the pleading on the ground that it shows upon its face that it is barred by the statute of limitations should be overruled.

3. PARTIAL PAYMENTS--Application--Interest-bearing Note. The rule in this state for the application of partial payments on an interest-bearing promissory note is, if the payment exceed the interest due, to apply it first in discharge of the interest and the remainder in reduction of the principal; if the payment be less than the interest due, it is to be applied upon the interest, but the remainder of interest is not to increase the principal.

W. H. Sproul, and N. E. Van Tuyl, for plaintiff in error.

J. E. Brooks, and C. W. Spencer, for defendant in error.

OPINION

SMITH, J.:

The defendant moves to dismiss the case here on the ground that there is not one hundred dollars in value involved. To establish this claim he computes the interest on each note from the date of the same to the 13th day of February, 1906, being the day the demurrer was sustained, then adds these amounts together and deducts therefrom the sum of all the partial payments with interest on each payment from the date it was made to February 13,...