Elliott v. The P. H. Albright Farm Loan Company

• Decision Date: 07 December 1929
• Docket Number: 28,922
• Parties: JOSEPH I. ELLIOTT et al., Appellants, v. THE P. H. ALBRIGHT FARM LOAN COMPANY, Appellee
• Court: Kansas Supreme Court

282 P. 749

129 Kan. 280

JOSEPH I. ELLIOTT et al., Appellants, v. THE P. H. ALBRIGHT FARM LOAN COMPANY, Appellee

No. 28,922

Supreme Court of Kansas

December 7, 1929

Decided July, 1929.

Appeal from Chautauqua district court; GEORGE J. BENSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL AND ERROR--Presumptions on Review. Error is never presumed, and where the record fails to set out the evidence upon which judgment is based it cannot be held that it is without support.

2. SAME--Necessity and Sufficiency of Record. A motion for a new trial upon the alleged grounds of erroneous rulings in the trial and a lack of sufficient evidence raises no question for a review where the rulings and evidence are not brought into the record of the appeal.

Paul A. Lamb, of Caney, for the appellants.

S. C. Bloss, S. S. Bloss and G. T. McNeish, all of Winfield, for the appellee.

OPINION

JOHNSTON, C. J.:

Joseph I. Elliott and La Vina Elliott, his wife, brought this action against the P. H. Albright Farm Loan Company to recover statutory damages and attorneys' fees for the refusal of defendant to enter satisfaction of mortgages which were executed and recorded and upon which no money or other consideration was paid by the defendant.

In defense the defendant pleaded that an application for the loan made by plaintiffs was accepted upon condition that the plaintiffs would "remove all liens now on said land, and have any necessary corrections in the title before the loan is completed. For the purpose of completing this loan I hereby appoint P. H. Albright Farm Loan Company of Winfield, Kansas, as my duly authorized agent." It was alleged that for the purpose of completing the loan it was necessary to incur expenses for the extension of an abstract covering the real estate, which amounted to $ 7.60, and further that an attorney's opinion accompany the abstract, and that this was necessary to complete the loan, for which the defendant paid the sum of $ 3; that the fees for recording the two mortgages were $ 2.70 and mortgage taxes paid thereon of $ 5.50, making a total of $ 18.80 incurred at the instance and request of plaintiffs. It was alleged that plaintiffs neglected to comply with the agreements made in their application that they would remove all liens and have necessary corrections made in the title before the loan was completed, and that it was not completed solely on account of the neglect of plaintiffs to comply with the agreements aforesaid; further alleged that defendants informed the plaintiffs that they were ready, willing and able to complete the loan any time plaintiffs should comply with the contract, and that on April 7, 1928, and prior to the bringing of this action, defendants informed plaintiffs in writing that upon the payment of the $ 18.80 expenses the defendants would treat the agreement as at an end, and would enter a release of the mortgages, but compliance with this requirement was not made by the plaintiffs.

During the pendency of the proceeding Joseph I. Elliott died, and the action was revived in the name of La Vina Elliott, his wife. A trial was had in which testimony on the issues joined was received, after which the court entered the following judgment:

"And thereupon having heard the evidence, and after listening to the arguments and being fully advised in the premises finds that the plaintiffs are not entitled to recover the statutory damages and attorney fees as prayed for in the petition of said plaintiffs.

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